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Forum Home  →  Discussion  →  Universal credit migration  →  Thread

Claimants already getting SDP

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HB Anorak
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ESA(ir) is abolished when you claim either UC, JSA or ESA but only for the purpose of the claim and any award arising from it.  Once the claim has been decided and any resulting award has ended you are back to square one and ESA needs to be abolished again if you try to claim it again … except it isn’t abolished in an SDP case.

Dan_Manville
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So it’s only abolished until it’s not abolished any more?

What a strange web has been woven…

Pete at CAB
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Dan Manville - 28 January 2019 03:05 PM

So it’s only abolished until it’s not abolished any more?

What a strange web has been woven…

It beginning to sound like Schrodinger’s Benefit, its simultaneously abolished and not abolished depending on the observer!

Timothy Seaside
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MKM35 - 28 January 2019 11:19 AM

Thanks, HB.

Would it matter that he was entitled to SDP but couldn’t claim as he was street homeless?

It’s not about eligibility for an SDP - it’s about having one, or having had one in the past month and continuing to satisfy the eligibility conditions. I think the phrase “entitled to” requires a decision to have been made - it is not a theoretical entitlement - otherwise the bit about continuing to satisfy the conditions for eligibility for an SDP wouldn’t make any sense.

However, if he applies to a local authority for homelessness assistance, and they provide accommodation under s188 of the Housing Act 1996. Presumably he’s going to be able to give a local authority reason to believe he may be homeless, eligible, and in priority need (it’s meant to be a low threshold). Then he’ll be able to make a claim for HB for his rent. And as HB Anorak says, this would then mean he has an SDP, so he could end his UC claim and make a new claim for ESA.

My worry with ending UC and starting a new ESA claim would be around protecting his WRAG component - it sounds as though he had this and has kept it (as LCW) through the transitional provisions from ESA to UC. Is there protection for the WRAG when going back from UC to ESA? I have no idea what the answer is.

 

stevenmcavoy
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Timothy Seaside - 28 January 2019 05:23 PM
MKM35 - 28 January 2019 11:19 AM

Thanks, HB.

Would it matter that he was entitled to SDP but couldn’t claim as he was street homeless?

It’s not about eligibility for an SDP - it’s about having one, or having had one in the past month and continuing to satisfy the eligibility conditions. I think the phrase “entitled to” requires a decision to have been made - it is not a theoretical entitlement - otherwise the bit about continuing to satisfy the conditions for eligibility for an SDP wouldn’t make any sense.

However, if he applies to a local authority for homelessness assistance, and they provide accommodation under s188 of the Housing Act 1996. Presumably he’s going to be able to give a local authority reason to believe he may be homeless, eligible, and in priority need (it’s meant to be a low threshold). Then he’ll be able to make a claim for HB for his rent. And as HB Anorak says, this would then mean he has an SDP, so he could end his UC claim and make a new claim for ESA.

My worry with ending UC and starting a new ESA claim would be around protecting his WRAG component - it sounds as though he had this and has kept it (as LCW) through the transitional provisions from ESA to UC. Is there protection for the WRAG when going back from UC to ESA? I have no idea what the answer is.

No as they never envisaged a claimant being able to go back the way so you can carry it from esa to uc but not the reverse.

Though in the one actual case I had this they made a mistake and did it.

Timothy Seaside
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stevenmcavoy - 28 January 2019 08:56 PM

No as they never envisaged a claimant being able to go back the way so you can carry it from esa to uc but not the reverse.

Though in the one actual case I had this they made a mistake and did it.

That’s what I’d have thought. I just wasn’t sure whether there was some linking or reclaiming rule that might apply as the ESA claim ended quite recently.

JojoMitchell
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Sorry but I’m also adding to this thread.  Scenario - couple now separated and the bloke has ESA (CB) & PIP (DL).  He is “entitled” to the SDP but needs this as a top up of ESA(IR) to his ESA(CB).  Could he be prevented from having to claim UC?  His SDP would only be payable with ESA(IR)...no details on his rent so cannot say if he gets SDP with any HB.  He doesn’t have a claim for UC so am assuming he hasn’t yet claimed help with rent as he only moved into an emergency hotel via LA today!

stevenmcavoy
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JojoMitchell - 29 January 2019 05:01 PM

Sorry but I’m also adding to this thread.  Scenario - couple now separated and the bloke has ESA (CB) & PIP (DL).  He is “entitled” to the SDP but needs this as a top up of ESA(IR) to his ESA(CB).  Could he be prevented from having to claim UC?  His SDP would only be payable with ESA(IR)...no details on his rent so cannot say if he gets SDP with any HB.  He doesn’t have a claim for UC so am assuming he hasn’t yet claimed help with rent as he only moved into an emergency hotel via LA today!

if he made his claim for esa pre full roll out in his postcode then i believe his esa would be old style which means he can get the ir top up added to his claim as that wouldnt be a new claim.  if it was post uc roll out then its esa new style and so ir top up not allowed.  happy to be corrected if wrong.

with his current housing status though, can he not claim hb as in exempt accommodation, get an sdp in his hb award and use the si blocking uc claims for those with an sdp to claim esa ir in any case?

JojoMitchell
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He is old style ESA for sure so am hoping he will get the top up - he was working before ESA so didn’t move over from ICB to ESA(CB) so won’t be contacted by DWP re: missing out.

Many thanks!

Dan_Manville
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Timothy Seaside - 28 January 2019 05:23 PM

I think the phrase “entitled to” requires a decision to have been made - it is not a theoretical entitlement -

I must challenge that. If it were a claim I’d agree but this is simply a premium. One is entitled to the premium if Jobcentre Plus are aware that the conditions are met. When we complete an IS10 we are not “claiming” the SDP we are notifying a change of circs and entitlement arises from there.

If my caseload is anything to go by there will be a sizeable cohort of people entitled to the SDP who aren’t receiving it; usually where they’ve come out of hospital and despite DWP being aware their DLA’s back in payment haven’t done an IS10 to revive the SDP; alternatively when people move in supported accom; staff notify the change of address -the declaration is enough to trigger the SDP- but don’t specifically ask for the SDP so it doesn’t go into payment.

 

 

[ Edited: 31 Jan 2019 at 10:16 am by Dan_Manville ]
Timothy Seaside
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Dan Manville - 30 January 2019 11:52 AM
Timothy Seaside - 28 January 2019 05:23 PM

I think the phrase “entitled to” requires a decision to have been made - it is not a theoretical entitlement -

I must challenge that. If it were a claim I’d agree but this is simply a premium. One is entitled to the premium if Jobcentre Plus are aware that the conditions are met. When we complete an IS10 we are not “claiming” the SDP we are notifying a change of circs and entitlement arises from there.

If my caseload is anything to go by there will be a sizeable cohort of people entitled to the SDP who aren’t receiving it; usually where they’ve come out of hospital and despite DWP being aware their DLA’s back in payment haven’t done an IS10 to revive the SDP; alternatively when people move in supported accom; staff notify the change of address -the declaration is enough to trigger the SDP- but don’t specifically ask for the SDP so it doesn’t go into payment.

 

Yes, perhaps I didn’t word that very well. To be entitled to an SDP, a decision must have been made on a benefit that an SDP attaches to.

So, yes, I’d agree you can be entitled to an SDP on your ESA and not be receiving it, but you are not entitled to an SDP if you haven’t got a benefit to attach it to.

I think this sort of discussion is really helpful as an indicator of how much fun we’re going to have when we’re trying to help the DWP to understand why our clients can’t claim UC.

AlexJ
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ros - 18 January 2019 01:38 PM

Hi Florinda - if people with the SDP in legacy benefits claimed UC because of a move to a different borough before 16 January then they have to stay on UC. However, the DWP will be compensating them for the loss of the SDP to an extent when the draft regulations that allow that are agreed by parliament.

Is there any news on the compensation for people who have already migrated? It was back in June that the high court decided [2018] EWHC 1474 (Admin) and the DWP still don’t seem to have created a remedy for those who have already lost out. I presume that there must be some legal authorities about government departments needing to take prompt action to remedy cases where they have been found to have acted unlawfully, and seven months and counting isn’t exactly prompt. 

I currently have a client who has been diagnosed with terminal illness who migrated from ESA to UC before16th January 2019 and consequently lost his SDP. I’m wondering whether there is any scope for getting some compensation sorted as a matter of urgency, as this gentleman is obviously running short of time.

Any thoughts or suggestions appreciated.

Timothy Seaside
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The compensation was included in the original draft SI, amending the Transitional Provisions Regs, but that has been held up so that parliament can debate some of the other bits (and because parliament doesn’t have time for normal business at the moment). The government rushed through the tiny bit with the changes to stop people claiming UC if they were already getting an SDP (etc. - see discussion above) just in time for 16 January. But they have not rushed through the bit about compensation. It is still in a draft SI, but as far as I know we don’t have a timetable for it to be passed.

The draft SI is at http://www.legislation.gov.uk/ukdsi/2019/9780111178317

The bit you’re interested in is the new Reg 64 and Schedule 2 of the Transitional Provisions Regs.

It’s only a draft though, so you can’t rely on it - it may never happen.

[ Edited: 31 Jan 2019 at 11:57 am by Timothy Seaside ]
Tara CAC
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How would it work if a claimant made a claim for UC just before 16th January (in receipt of IS with SDP required move due to child turning 5)
Could they cancel the UC claim and claim irESA -with eligibility for SDP within the last month countering the abolishing of legacy benefits due to UC claim - before the end of first assessment period?

Timothy Seaside
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Tara CAC - 31 January 2019 04:01 PM

How would it work if a claimant made a claim for UC just before 16th January (in receipt of IS with SDP required move due to child turning 5)
Could they cancel the UC claim and claim irESA -with eligibility for SDP within the last month countering the abolishing of legacy benefits due to UC claim - before the end of first assessment period?

Short answer: yes.
Because they were entitled to an SDP (with their IS) within the last month, and continue to satisfy the criteria for an SDP.