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Claimants already getting SDP

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RichB
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Timothy Seaside - 11 February 2019 06:04 PM
Ianb - 11 February 2019 05:26 PM

I’ve recently helped a client make a claim for legacy ESA on grounds they have SDP in an existing HB award. Response from ESA claim line -“I’ve never heard of an SDP in an HB award”! To be fair they did then take the claim but even so one might hope that they had been briefed on this.

My most recent one (I’ve had three) involved the JCP who were very helpful with ending the UC and pressing ESA to accept the new claim. Eventually we got the claim accepted, and then I got a phone call from ESA because they were worried that there must have been an overpayment because if the claimant was getting SDP in HB and IS, surely that means they got paid it twice, no? I explained how an SDP in HB works, but it took about 15 minutes before he was satisfied that he understood. I think it’s understandable - their concept of an SDP is of giving away extra money as income, the HB concept of an SDP is of taking away extra money from income.

Anyone any views on attempting this in respect of Council Tax Reduction (Scotland) which has SDP amounts

 

Timothy Seaside
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RichB - 12 February 2019 03:33 PM

Anyone any views on attempting this in respect of Council Tax Reduction (Scotland) which has SDP amounts

 

The SDP Gateway regs introduced the following definition of an SDP to Reg 2 of the UC Transitional Provisions Regs:-

“severe disability premium” means the premium in relation to an employment and support allowance under paragraph 6 of Schedule 4 to the Employment and Support Allowance Regulations 2008(2) or, as the case may be, the corresponding premium in relation to income support, old style JSA or housing benefit;

So I think the answer is probably no.

[ Edited: 12 Feb 2019 at 03:47 pm by Timothy Seaside ]
past caring
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Another scenario;

Client in receipt of ESA standard rate pending appeal. Also has an award of PIP standard rate both components up to September 2021. That award of PIP gets suspended 24/9/2018 due to the fact her leave to remain expired on that date (an in-time application to vary was submitted, so she would have had s. 3C leave pending a decision - and further leave was granted 19/1/2019).

ESA appeal heard last week - LCWRA outcome.

Unfortunately, client has moderate learning difficulties and mental health problems and support worker services are intermittent (essentially, someone has to be in crisis) and so she finds it difficult to engage with me and I am not always kept in the loop.

A support worker gets involved, sees client is receiving only basic rate ESA, assumes she is in assessment phase and gets client to make a UC claim 29/1/2019. What is worse, it appears that client was supported to provide her new Home Office documents/biometric residence permit, so it doesn’t appear there is any prospect of a negative habitual residence decision and thus an argument that the basic conditions of entitlement not met…..

I get to learn of this only last week when I meet client to rep at the tribunal. She also has a letter from ESA, paying arrears of SDP - but only up to 17/11/2017 (the date of the negative WCA decision).

But arguably, client was entitled to an award of an existing benefit that included the SDP as at the date of the UC claim - and continues to meet the conditions of entitlement - the SDP may not have been in payment, but that is an administrative issue, which I’m now in the process of rectifying….Thoughts?

Timothy Seaside
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past caring - 19 February 2019 10:26 AM

Another scenario;

But arguably, client was entitled to an award of an existing benefit that included the SDP as at the date of the UC claim - and continues to meet the conditions of entitlement - the SDP may not have been in payment, but that is an administrative issue, which I’m now in the process of rectifying….Thoughts?

Are you saying the PIP was suspended but was back in payment on 29/01/2019? If so, then I would agree that the consequence of the ESA appeal last week was that she was entitled to ESA with an SDP when she claimed UC. This means she couldn’t claim UC and I can’t see any reason why you can’t ask for an MR of the decision to award UC. This would mean that the UC never happened and the ESA would never have been stopped.

Breaking it down into Reg 4A points:-
The ESA appeal decision has the effect that she was getting one of the SDP benefits at the time of the UC claim.
If she was still entitled to PIP DL (with no carer, etc.) then she was entitled to an SDP.
So Reg 4A (a) applies and she could not make a claim for UC after 16 January 2019.

The difficulty I think you may have is in persuading the DWP that her ESA included an SDP - because at the moment it probably doesn’t look like it did (on their computers). So step one is probably to get the SDP included in the ESA award. Alternatively, of course, if she was getting HB then there was an SDP included in that, so you don’t have to make the ESA argument (and wait for that to get sorted out).

 

[ Edited: 19 Feb 2019 at 12:15 pm by Timothy Seaside ]
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No - PIP was not in payment on 29/1/2019. It is still not in payment - I am in the process of sorting that out. However, the client was entitled to PIP - the award had been made and her immigration status was such that she was entitled to be paid it. PIP, unfortunately, were not aware of this - but getting it back in payment is simply an administrative matter, which does not require even a supersession decision.

Arrears of SDP were paid up only to 17/11/2017 due to DWP error - payment did not stop at that point because of any doubt as to the client’s immigration status, but because that was the date of the WCA decision (client continued to receive ESA standard rate pending appeal).

Reg. 4A applies where a claimant is “entitled to an award of an existing benefit that includes a severe disability premium” - it doesn’t include a provision which requires the SDP to actually be in payment on the date in question.

Look at it another way - what is the effect of last week’s tribunal decision on ESA entitlement? It is as if the negative WCA decision of 17/11/2017 had never been made. Tribunal found the client to have LCFWRA. So, were we asking the question - “is/was the client, on 29/1/2019, entitled to an award of an existing benefit (ESA) that includes the Support Component?” - there is only one answer: yes.

Given the way that reg. 4A is drafted, I think the same is true for the SDP.

Timothy Seaside
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past caring - 19 February 2019 12:48 PM

Reg. 4A applies where a claimant is “entitled to an award of an existing benefit that includes a severe disability premium” - it doesn’t include a provision which requires the SDP to actually be in payment on the date in question.

Look at it another way - what is the effect of last week’s tribunal decision on ESA entitlement? It is as if the negative WCA decision of 17/11/2017 had never been made. Tribunal found the client to have LCFWRA. So, were we asking the question - “is/was the client, on 29/1/2019, entitled to an award of an existing benefit (ESA) that includes the Support Component?” - there is only one answer: yes.

Given the way that reg. 4A is drafted, I think the same is true for the SDP.

Totally agree. I don’t think there’s any question about the legal position - she can MR the decision to award UC. She was entitled to a benefit that (should have) included an SDP so she couldn’t make a claim for UC after 16/01/2019. But from a practical point of view, the UC DMs aren’t likely to agree/understand until the PIP is back in place, and maybe not until the ESA is showing an SDP on their computer.

 

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Thanks - just wanted to check I wasn’t missing something. The DMs messing about she and I can live with - she has just had £4k arrears of SDP, will be due more than that now she has won the tribunal (I know she was always due it, but now there won’t be a problem getting ESA to pay) plus has the arrears of PIP and its continued payment in the offing. And I can get the HB sorted. All of which will give her some cushion whilst we are sorting UC out…

Timothy Seaside
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past caring - 19 February 2019 03:48 PM

Thanks - just wanted to check I wasn’t missing something. The DMs messing about she and I can live with - she has just had £4k arrears of SDP, will be due more than that now she has won the tribunal (I know she was always due it, but now there won’t be a problem getting ESA to pay) plus has the arrears of PIP and its continued payment in the offing. And I can get the HB sorted. All of which will give her some cushion whilst we are sorting UC out…

Yes, I was going to say that it looks like she’s in quite a good position - as she’s going to be due some significant underpayments, and also she’s in the unusual position of wanting to come off the benefit she’s MRing so there’s a sort of automatic safeguard - she should carry on getting UC until she gets them to accept she shouldn’t have been on UC in the first place. I just hope she carries on engaging with you, and that nobody else sabotages your good work.

Tara CAC
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past caring - 19 February 2019 03:48 PM

Thanks - just wanted to check I wasn’t missing something. The DMs messing about she and I can live with - she has just had £4k arrears of SDP, will be due more than that now she has won the tribunal (I know she was always due it, but now there won’t be a problem getting ESA to pay) plus has the arrears of PIP and its continued payment in the offing. And I can get the HB sorted. All of which will give her some cushion whilst we are sorting UC out…

From my understanding and HB Anorak’s response to my query (pg5 of this thread) you can just cancel the UC claim and make a new claim/reinstate previous claims of legacy benefits because she meets the SDP criteria - rather than having to do a MR for UC.

Timothy Seaside
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Tara CAC - 21 February 2019 02:19 PM
past caring - 19 February 2019 03:48 PM

Thanks - just wanted to check I wasn’t missing something. The DMs messing about she and I can live with - she has just had £4k arrears of SDP, will be due more than that now she has won the tribunal (I know she was always due it, but now there won’t be a problem getting ESA to pay) plus has the arrears of PIP and its continued payment in the offing. And I can get the HB sorted. All of which will give her some cushion whilst we are sorting UC out…

From my understanding and HB Anorak’s response to my query (pg5 of this thread) you can just cancel the UC claim and make a new claim/reinstate previous claims of legacy benefits because she meets the SDP criteria - rather than having to do a MR for UC.

Yes, this is true. But in this case, it will be better to MR the decision to award UC because then the UC claim never actually started, and the ESA never stopped. And the UC carries on until the MR/appeal is completed. The alternative of stopping the UC and starting a new claim for ESA would still work because we’re still within a month of the last time the claimant received an SDP, but I don’t think it’s the best option because it doesn’t reflect the true situation - there was never a lawful UC award - and it could lead to a period with no benefits being paid while the dust settles.

Thinking about this again, I’m not sure whether you’d need to MR the decision to stop ESA as well? Or whether you could just do it as an MR on the decision to stop ESA - on the basis that the UC claim couldn’t be lawful so the decision to end stop ESA was also wrong? I think I’d MR both, for certainty’s sake - you want a decision on both rather than leaving the UC dangling.

Elliot Kent
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I don’t think you can MR the decision to award UC because it doesn’t exist until the end of the first AP (which is the first point at which the SSWP is in a position to make an entitlement decision under s8 SSA disposing of the claim). The fact that the UC claim is withdrawn before it is decided is, I think, the end of it.

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Elliot Kent - 22 February 2019 02:42 PM

I don’t think you can MR the decision to award UC because it doesn’t exist until the end of the first AP (which is the first point at which the SSWP is in a position to make an entitlement decision under s8 SSA disposing of the claim). The fact that the UC claim is withdrawn before it is decided is, I think, the end of it.

I hadn’t thought of that, and I think you’re right. But on a practical level, I’d still argue it makes more sense to leave the UC claim in place while we are trying to get the ESA, etc. sorted out. Actively ending the UC could leave us hanging while we try to persuade ESA and HB that Reg 4A applies based on the appeal result - I’d hope this would be fairly quick, but what if it’s not - what if they just won’t see it? And if it does drag on past the first AP to a payment then we still get paid in the interim, and we can fix it later by MR - so that everything ends up as it should have been.

 

Charles
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Elliot Kent - 22 February 2019 02:42 PM

I don’t think you can MR the decision to award UC because it doesn’t exist until the end of the first AP (which is the first point at which the SSWP is in a position to make an entitlement decision under s8 SSA disposing of the claim). The fact that the UC claim is withdrawn before it is decided is, I think, the end of it.

I understand entitlement requires a complete AP, but why can’t a decision be made earlier if on current circumstances there will be a complete AP?
It’s similar to advance awards in many benefits, which can be made despite the possibility of a change of circs happening before entitlement starts. For UC, see C&P Regs, r32(3).
If the concern is not knowing how much earned income will be received in the AP, couldn’t that be sorted by UC Regs, r54(2)?

[ Edited: 27 Feb 2019 at 01:16 pm by Charles ]
Chrissum
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So. Looking for some thoughts on this little doozy please. Client and wife both vulnerable and disabled (both deaf). Wife is the ESA claimant but the award includes 2xSDP. Wife sadly dies last week. Client tries to claim UC but is turned down due to the SDP. Puts in a claim for ESA and is turned down as he was not the ESA claimant and therefore was not entitled to the SDP. HB claim also lodged but not processed as they “have to wait” on ESA being awarded. This has been escalated via ESA as high as “policy” who have come back and stated:
“As per our telephone conversation. Attached is a copy of the response I have received from our policy team, which appear to all hinge around the definition of claimant.

What they are saying is that to met (sic) the SDP hard gateway and continue claiming ESA Mr C would need to be the claimant and been receiving SDP.
However in the case his wife was the claimant and therefore it was she who was receiving the SDP (for both herself and her husband).

From the information supplied it appears that Mr C wasn’t the claimant and therefore he wasn’t getting an SDP. The claimant must be entitled to an SDP and if the partner also qualifies they get the couple rate SDP.

So if the claimant wasn’t entitled to an SDP even if the partner would have otherwise qualified it would not be payable.

Therefore it is correct that he would need to make a claim for UC and the hard gateway would not apply” [end quote]

So we are back to what is a claimant and what is a “joint claimant”. A claimant is defined for benefit purposes as a person who makes the claim or any other person from whom benefit is alleged to be recoverable. HB reg 101 refers to recoverable overpayments which have been made to a claimant who has a partner as being recoverable from that partner.

Any mileage in arguing this?

If not - where do we go from here? Had the client died not the wife, she would have remained on ESA with the SDP, but because she was the one who died, he loses out considerably because he won’t even qualify for the compensatory payment.

And to top it all, he can’t claim a funeral payment at the moment because he is not receiving an appropriate benefit as neither HB, UC nor ESA are accepting his claims.

[ Edited: 28 Feb 2019 at 04:36 pm by Chrissum ]
Charles
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ESA and HB are both pretty clear that only one of a couple is the claimant and has an award of benefit (which is actually what the SDP hard gateway depends on).

This exact situation was noticed by Peter Barker (HB Anorak) in the original draft managed migration regs, and he tried to feed it in to the SSAC consultation, but I don’t think he got anywhere.

I think the only forward is by way of JR. It is so patently unfair.

https://www.rightsnet.org.uk/forums/viewthread/13023/P30/#62137

[ Edited: 28 Feb 2019 at 05:02 pm by Charles ]