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Claimants already getting SDP

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Charlie.RNIB
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Hi, looking for clarification on this situation.

One of our Advice line colleagues is supporting a client who was getting ESA with an SDP. When she advised DWP that her partner would be moving in she was told by DWP that she must claim UC. I understand that he moved into her property with her children on 27/07/2019, and her ESA was stopped from that date. Her partner is now claiming CA.

The amending regs re the ‘SDP gateway’ say:
“Restriction on claims for universal credit by persons entitled to a severe disability premium
4A.  No claim may be made for universal credit on or after 16th January 2019 by a single claimant who, or joint claimants either of whom—
(a) is, or has been within the past month, entitled to an award of an existing benefit that includes a severe disability premium; and
(b) in a case where the award ended during that month, has continued to satisfy the conditions for eligibility for a severe disability premium.”

A colleague in my team says: “Yes, my understanding would be that as the client was receiving SDP and had a change in circumstances that would have previously prompted a new claim to Universal Credit, she will remain on legacy benefits and her change of circs dealt with in the old system. It sounds slightly more confusing as in this case the change of circs will result in the client losing SDP but I think the regs you have quoted match with what we think.”

So, our understanding is that the ESA claim should not have been ended because the SDP gateway stops her claiming UC and allows her to continue ESA (albeit without an SDP). I think DWP are getting confused by 4A(b) and believing that ESA has ended and the claimants no longer satisfies the conditions for SDP.

Do people agree ESA should not  have been stopped? If so how do we get the position corrected, especially if the SDP helpline won’t help?!

Thanks in advance.

HB Anorak
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To answer fully, we need to know more about the partner in particular:

- does he have income that would disentitle the claimant to couple rate ESA(ir)?
- does he also satisfy the SDP conditions?

There are various permutations depending on those answers.

Suppose he has no income, or no significant income: in that case, ESA(ir) would not stop simply because the claimant has a partner, it would be reassessed at the couple rate.  However, that would leave the problem of supporting the children: unless they qualify for the SDP as a couple they cannot make a new Tax Credit claim (and they would need to make a new Tax Credit claim as a couple even if he was already getting it as a lone parent).

Your client does not continue to meet the SDP conditions from the instant her partner moves in unless he too is on PIP etc, so if that is not the case they probably ought to claim UC.  It’s their choice, but there will be no money for the children otherwise.

Charlie.RNIB
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HB Anorak - 29 August 2019 02:00 PM

To answer fully, we need to know more about the partner in particular:

- does he have income that would disentitle the claimant to couple rate ESA(ir)?
- does he also satisfy the SDP conditions?

There are various permutations depending on those answers.

Suppose he has no income, or no significant income: in that case, ESA(ir) would not stop simply because the claimant has a partner, it would be reassessed at the couple rate.  However, that would leave the problem of supporting the children: unless they qualify for the SDP as a couple they cannot make a new Tax Credit claim (and they would need to make a new Tax Credit claim as a couple even if he was already getting it as a lone parent).

Your client does not continue to meet the SDP conditions from the instant her partner moves in unless he too is on PIP etc, so if that is not the case they probably ought to claim UC.  It’s their choice, but there will be no money for the children otherwise.

Sorry, dealing with enquiry second hand. Apparently the client’s CTC and HB have been stopped. The partner is not disabled.

My original question was whether or not it is correct that the client should have been told she must claim UC rather than stay on legacy benefits, regardless of whether the couple are better off on legacy benefits or UC? I think the sdp gateway prevents her claiming UC, albeit there will be no sdp following the partner moving in.

HB Anorak
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Sorry, I’ve probably over-complicated it. The SDP gateway does not apply here.  She does not satisfy the SDP entitlement conditions, because she has a partner who is not disabled.  The instant they became a couple, she was no longer blocked from claiming UC.

Daphne
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Someone has raised with me an issue were a local authority is saying that you don’t meet the SDP gateway conditions if your only entitlement to SDP is in HB - I think getting confused with the fact that you don’t get SDP transitional payments if you’ve already migrated to UC and your previous SDP entitlement was only in HB (https://www.rightsnet.org.uk/welfare-rights/news/item/dwp-backtracks-on-provision-of-sdp-transitional-payments-to-people-formerly).

Has anyone else seen this happening?

ResSusLBH
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stevejohnsontrainer - 19 March 2019 06:40 PM

From email response recieved from UC Policy Group today…

“...The issue / question you refer to below has arisen previously and the legal advice we have had confirms that ‘a person entitled to a benefit that includes the SDP, includes a person who meet the conditions for SDP but have not yet received it’.

So, if someone is not receiving the SDP as part of their legacy benefit (e.g. Income Support, Jobseekers Allowance (income based), Employment & Support Allowance (income related) and Housing Benefit), but following a change of circumstances that requires them to make a new claim to Universal Credit (as this replaces the above benefits), it is identified during the course of dealing with this change of circumstances that the claimant should be receiving SDP, as they meet all of the qualifying conditions but for some reason this hasn’t been put into payment, then these claimants will be prevented from claiming UC by the SDP Gateway and will be able to stay on / claim a legacy benefit, and the SDP will be added to their claim. These claimants will then only be moved to UC by the DWP as part of the managed migration exercise as some point in the future and will receive transitional protection.


Thanks”

Hi Steve

I have a case such as this at the minute and wanted to simplify things as much as possible for our friends in the DWP.

I shared your quote and they stated they’d never seen the guidance…

Are you able to help me to help them?

Many thanks.

 

 

 

stevejohnsontrainer
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Colleagues,

Apologies for not responding sooner. I have the original email exchange with the DWP, in case you would like me to forward it (if yes please give details).

From memory, I recall an FOI sent after we received the email confirmed that there were no written authorities from the DWP or the email advice they sent - looks like it was based on verbal thinking from DWP at the time.

Cheers,

Steve

Paul_Treloar_AgeUK
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stevejohnsontrainer - 02 December 2019 11:37 AM

based on verbal thinking from DWP at the time

Based on “verbal thinking” you say? Like thinking out loud or possibly even, making it up as they go along?

Pete at CAB
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Paul_Treloar_AgeUK - 02 December 2019 02:53 PM
stevejohnsontrainer - 02 December 2019 11:37 AM

based on verbal thinking from DWP at the time

Based on “verbal thinking” you say? Like thinking out loud or possibly even, making it up as they go along?

Surely not, I’m shocked that you could suggest such a thing.

CAAdviser
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Daphne - 23 September 2019 03:22 PM

Someone has raised with me an issue were a local authority is saying that you don’t meet the SDP gateway conditions if your only entitlement to SDP is in HB - I think getting confused with the fact that you don’t get SDP transitional payments if you’ve already migrated to UC and your previous SDP entitlement was only in HB (https://www.rightsnet.org.uk/welfare-rights/news/item/dwp-backtracks-on-provision-of-sdp-transitional-payments-to-people-formerly).

Has anyone else seen this happening?

You posted this some time ago, but yes I have.  I had a very frustrating conversation (about two months ago)  with the SDP team when I was trying to get a client moved back to legacy from UC as she was receiving the SDP within her HB claim.  The person I spoke to just kept saying my client wasn’t entitled to the SDP TP and couldn’t grasp (whatever I quoted at her!) that I wasn’t talking about the TP - it was like talking to a very certain, but uninformed, brick wall.  Thankfully HB knew what they were doing and didn’t close her HB claim following receipt of the stop notice so we just withdrew the UC claim in the end.

Daphne
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Thanks that’s interesting - tho sounding like the lack of knowledge is within the SDP team within UC (allegedly a specialist team - sigh!) but at least the local authority did know what they were doing which is reassuring.

JojoMitchell
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Jumping on this on - client receives HB & ESA (IR) & PIP.  Partner with their child (1 yoa) wants to move in (not working - but do not know what benefit she currently receives).  Client is at Uni full time and receives student finance.

I’ve read conflicting info on here so wanted to check both about the SDP transitional protection and whether this change will trigger a UC claim.  Some posters have said that the partner will just be added to the existing ESA (IR) claim but others that it will not.

So, if she receives UC (and not IS, CTC) then there is no option but for the client to move onto UC.  If she receives legacy benefits, could she be added to his ESA(IR)? But then tax credits going from a single to joint would trigger UC…

If this happens & they both make claims for UC, he will have a nightmare as a full time student BUT surely his LCWRA would go with him and that would allow payment of UC as a full time student?

I am due to speak to this couple on Wednesday.

 

Charles
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JojoMitchell - 06 January 2020 05:42 PM

So, if she receives UC (and not IS, CTC) then there is no option but for the client to move onto UC.

Correct, unless she closes her UC claim prior to moving in. According to current guidance issued by DWP this would have to be done before the end of the last AP which ends before she moves in.

If she receives legacy benefits, could she be added to his ESA(IR)? But then tax credits going from a single to joint would trigger UC…

Yes, she could be added to HB and ESA, but not TCs.

If this happens & they both make claims for UC, he will have a nightmare as a full time student BUT surely his LCWRA would go with him and that would allow payment of UC as a full time student?

There are a couple of reasons why being a student would anyway not be a problem in this case:
1. A couple with only one in education can get UC (reg. 3(2)(b)).
2. The child (Reg. 14(c) and Reg. 4(2)).

JojoMitchell
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Oh yes, had forgotten about the UC student/child!  So, as a couple on UC he should get the TP as he would be getting the SDP before claiming UC.  No other way around staying on legacy benefits…

HB Anorak
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No, there is no transitional protection because this is not a managed migration case and [edited for completeness] it’s not within the scope of the SDP compensation thingy because they didn’t have SDP assessed s a couple before claiming UC.

On the face of it they are a bit better off with UC anyway because the LCWRA component outstrips the most advantageous possible legacy combo of IS with couple rate DP and EDP (assuming she could get IS as a carer).  But there is another complicating factor here: in view of the student finance, I assume he doesn’t get very much ESA(ir) and losing the SDP (which he will when his partner moves in) would reduce the applicable amount somewhat - basically what he gains going from single to couple is less than what he loses in the form of the SDP.  If this pushed student finance over the applicable amount, the “tapered” HB means test will partly or wholly offset the gain made through the UC LCWRA element rate.  A lot of conflicting factors at work in this case.

Now you might be thinking: so what - if they cannot claim Tax Credits then legacy is just not a viable option at all.  There is an argument that the HB SDP remains in place until the Monday after they get together, which provides a short window in which to claim Tax Credits

[ Edited: 6 Jan 2020 at 07:03 pm by HB Anorak ]