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Forum Home  →  Discussion  →  Universal credit migration  →  Thread

Claimants already getting SDP

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JojoMitchell
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Thank you!  There is also another factor in that he has a very large overpayment of both HB & ESA as he didn’t declare his student finance!  £23K for ESA & £9K for HB!!  Quite a mess really.

HB Anorak
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And yet still entitled to ESA(ir)???

JojoMitchell
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Yes, his ESA is £173.30 & his loan is £126.84.  Waiting on his student finance for 2019/2020.

HB Anorak
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So … how does he end up with an HB overpayment?

JojoMitchell
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He was a student from Sept 2015 and ESA & HB only discovered this last year.  The HB overpayment was for years 2015/16 & 2018/19 when his student finance was higher than his applicable amount.  We have appealed both decisions but have no grounds other than his mental health - he just didn’t inform either the DWP or LA. The HB overpayment is just over £2K.

[ Edited: 7 Jan 2020 at 10:34 am by JojoMitchell ]
Abi Sheridan
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Hi all,
Jumping on this just for a bit on confirmation on a cl of mine.
She was claiming ESA & PIP and living with her daughter, but moved out on 1/6/19. No-one got carers allowance for her, so I believe that from 1/6/19 she was eligible for SDP.
ESA sent her a letter a few days letter saying she was no longer eligible for ESA and they were stopping her money; she would need to claim UC. Her only change in circs was moving - she may not have been able to claim HB, but her ESA should not have stopped. Nothing from them about her eligibility for the SDP.
Having got this letter, she made a claim for UC. She failed the HRT and was left without any money. At this point she came to see me.

I put in an MR to UC, ESA, and HB (who had turned down her new claiming), giving that she was eligible for the SDP. I then also put in an MR regarding her HRT.

I hadnt heard anything from her since that point, so got back in touch just before Christmas to make sure everything had worked out. She told me that her UC was in payment so everything was sorted.

I believe this must mean her MRs re the SDP were negative. I’m thinking I should try and get hold of the MRN and do an appeal on the decision to close her ESA and to allow her UC claim, to get her moved back on legacy and then make a HB claim. She was never actually in receipt of the SDP, but it is enough to be eligible, as I understand it.

Just want to confirm that this is a feasible course of action? If not, Ill go down the TP route.

Owen_Stevens
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Hello all

I’ve had a client who requested a transitional SDP payment and was told that he had not been awarded the payment in a message on his journal rather than through a decision notice being posted to his journal.

He complained about this and was provided with a response containing the following:

“Your circumstances exclude you from being considered for these payments.  As you have been excluded from consideration there will not be a notification to reflect this.  Notifications are only generated in cases where we have considered the transitional payments and then deemed the claimants either eligible or ineligible.”

I’m not sure whether this is a one-off or part of a consistent approach, has anyone else seen this happening?

dizzymare
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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


at the risk of looking stupid (and clutching at straws) ... does this mean that if someone could be ‘entitled to’ an SDP (ie in receipt of PIP DL/no one claiming carers etc) but is not currently claiming a legacy benefit, they must claim UC ? 

Timothy Seaside
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dizzymare - 17 January 2020 12:00 PM

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


at the risk of looking stupid (and clutching at straws) ... does this mean that if someone could be ‘entitled to’ an SDP (ie in receipt of PIP DL/no one claiming carers etc) but is not currently claiming a legacy benefit, they must claim UC ?

Yes, I think that’s right. There has to be an existing claim for a legacy benefit. The question is then whether they are entitled to an SDP within that legacy benefit.

To put it another way, the legacy benefit must be real, the SDP entitlement can be theoretical.

dizzymare
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thank you Timothy (I was just arguing with myself really - hoping to get a better outcome for my client) my mind was playing with the ‘entitled to’ bit but I sadly, I think you are right :(

Owen_Stevens
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See attached for DWP’s guidance on when they will consider moving people back to legacy benefit

If you have a case where it would be in the best interests of the claimant but this is refused because the error has not been identified ‘promptly’ then please let me know (via Rightsnet direct message)

[ Edited: 10 Feb 2020 at 11:36 am by Owen_Stevens ]

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stevejohnsontrainer
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The FOI attachment Owen quoted from the DWP refers to the possibility that the DWP may ‘revise the UC award’..., then goes on to say the claimant will be returned to Legacy if the ‘error is identified promptly’... and if it is in their ‘best interests’ and so on.

The way I see it, there is no possibility of revising a UC claim where none is possible in SDP cases, therefore those and other considerations of doing so ‘promptly’ and ‘best interests’ seem irrelevant to the actual legal position. The DWP attachment reads like a tepid attempt to shroud rights with discretion.

I am less clear about the HMRC info - anyone have any views about this? Looks like they are saying they cannot revise a UC award, but client could reject UC and re-start tax credits.

Andrew Dutton
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stevejohnsontrainer - 13 February 2020 09:34 AM

The FOI attachment Owen quoted from the DWP refers to the possibility that the DWP may ‘revise the UC award’..., then goes on to say the claimant will be returned to Legacy if the ‘error is identified promptly’... and if it is in their ‘best interests’ and so on.

The way I see it, there is no possibility of revising a UC claim where none is possible in SDP cases, therefore those and other considerations of doing so ‘promptly’ and ‘best interests’ seem irrelevant to the actual legal position. The DWP attachment reads like a tepid attempt to shroud rights with discretion.

I am less clear about the HMRC info - anyone have any views about this? Looks like they are saying they cannot revise a UC award, but client could reject UC and re-start tax credits.

Yes, it reads to me as if the UC claim is completely unlawful and so must be treated as if it was never made?

And if so, how can an unlawful UC claim terminate Tax Credits?

 

Charles
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As others on here like to point out, the social security system (including tax credits) is a decision based system. When an incorrect decision is made, it has to be revised using specific powers provided for that. The decision to terminate TCs when a claim is made for UC is not a decision which can be revised (or appealed) under tax credit legislation. That is what they’re saying in that FOI attachment.

stevejohnsontrainer
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Hi Charles,

But surely the point is that in the absence of a valid UC claim, SDP Shield cases mean that Legacy just carries on unchanged. No need for DWP to consider ‘best interests’ (see Owen’s FOI), and no need to consider the revision powers of Tax Credits, or the lack of them.