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Claimants already getting SDP
I think its correct that he needs to claim UC - but wow, he could be looking at a loss of income of something like £1000 per month, if he’s going from couple claim with double SDP, couple EDP and support group to just basic standard allowance.
I would definitely be looking at JR.
[ Edited: 28 Feb 2019 at 05:01 pm by Elliot Kent ]Thanks Charles / Elliot. May not be an option the client wants to pursue but looks increasingly like JR is the only realistic route.
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 The fact that the UC claim is withdrawn before it is decided is, I think, the end of it.
That’s right, I think. And there was no decision/award in my case anyway - so straightforward withdrawal the way to go. We’re in the fortunate position of the client being due some £9k arrears of benefit on top of the £4k already paid mid-February - and that’s even if ESA had been properly terminated - so she has a bit of a cushion even if it takes me a little while to sort out.
One small point, going back to something Past Caring said further up the thread about failing s4(1) basic conditions: this argument only works for HB, Tax Credits and Income Support where awards terminate under Reg 8 of the UC(TP) Regs 2014 if UC is awarded or there is an unsuccessful claim that gets beyond s4(1)(a) to (d). ESA(ir) and JSA(ib) are abolished under the local commencement order as soon as UC is claimed - the claim doesn’t even have to get as far as s4(1)(a) to (d).
I am not 100% convinced yet about the “MR the UC award” approach. This relies on two things:
- if UC was claimed and awarded, then a successful PIP appeal/MR means the claimant was entitled to the SDP right up to the date of the UC claim, does this retrospectively nullify the UC claim because now it cannot legally exist?
- and is MR the right way to deal with it?
It seems a bit odd to be saying in an MR “I claimed benefit, so you paid me benefit, how dare you, I am very unhappy about that”. And there is the UT decision in [2018] UKUT 306 (AAC) where the claimant withdrew her UC claim and this was found not to make it as if there had never been a UC claim at all. That case is distinguishable in that there was never any legal obstacle to making the UC claim, but there is a sense that the UT’s view is if it happened in real time, then it happened and you cannot make it unhappen
I am not 100% convinced yet about the “MR the UC award” approach. This relies on two things:
- if UC was claimed and awarded, then a successful PIP appeal/MR means the claimant was entitled to the SDP right up to the date of the UC claim, does this retrospectively nullify the UC claim because now it cannot legally exist?
- and is MR the right way to deal with it?It seems a bit odd to be saying in an MR “I claimed benefit, so you paid me benefit, how dare you, I am very unhappy about that”. And there is the UT decision in [2018] UKUT 306 (AAC) where the claimant withdrew her UC claim and this was found not to make it as if there had never been a UC claim at all. That case is distinguishable in that there was never any legal obstacle to making the UC claim, but there is a sense that the UT’s view is if it happened in real time, then it happened and you cannot make it unhappen
I think your distinguishing factor is correct. A claim not allowed by law is not a claim.
A withdrawal of a claim could have had the effect of making it as if there had never been a claim (as is actually the case for an amendment to a claim - see r30(2) of the C&P Regs), but the UT held that that is not what the regulations do. I do not think it was simply because something which has happened cannot be “unhappened”.
Although Judge Jacobs mentions that a withdrawal “cannot rewrite history”, I think that is simply due to the legislation not expressly doing that (as he implies in the next paragraph of the decision). Here, without any legislation, history HAS changed - there WAS SDP entitlement at the time of the claim.
Even if you were to argue that any retrospective provision in the C&P Regs would only be a deeming provision, and would not affect the operation of the Transitional Provisions Regs, that would still not be the case for SDP.
About the need for MR’ing any UC decision if one has been made:
For IS, HB and TCs, an MR is necessary, as entitlement to UC is a standalone reason for termination (besides for the claim for UC being a reason for termination). Although there was no legal claim for UC, the decision awarding UC is still final, and it requires a revising decision to remove that entitlement.
However, JSA and ESA are only terminated (or converted to new-style benefits) through a claim for UC (or an award of UC made in respect of a claim). That hasn’t happened, despite an erroneous award being made, so no revision of the decision awarding UC is strictly necessary.
In practice, DWP will revise the decision awarding UC the moment they accept the claim wasn’t legal and allow the old-style ESA/JSA awards to continue.
I still think a decision could be made before the end of the first AP, but either way past caring says the decision hasn’t been made yet.
That being the case, decisions ending ANY legacy benefit can be revised immediately.
Again, in practice, when looking at a request for a revision to a terminating decision on the ESA, the moment DWP accept the UC claim wasn’t legal, they will stop the UC claim (with no decision being made) .
So basically in this case, first step is of course to get SDP included in ESA, then an MR should be requested on the decisions terminating ESA/HB on the grounds that a claim for UC has not been made. DWP should then (separately) automatically stop the UC claim.
In practical terms, it may be easier to convince the DM looking at the MR on the ESA decision (and the LA looking at the HB decision) if you can show the UC claim has been closed due to the SDP entitlement (not simply withdrawn, as that is not enough). So it is perhaps worthwhile to get UC to agree to do that.
Hi
In Northern Ireland UC are telling ESA / HB that a claimant must have been in receipt of SDP for 4 weeks before the UC bar applies. However, the regs appear to me to apply to anyone who is ENTITLED, they state
“Restriction on claims for universal credit by persons entitled to a severe disability premium 2B. 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.”
However, the Explanatory note for the Regs States, seems to state the person needs to be in RECEIPT:
These Regulations make provision restricting claims for universal credit by claimants who are, or have been, in receipt of an existing benefit that includes a severe disability premium. Regulation 1 provides for citation and commencement.
I think this is quite confusing. The Department seems to have decided that only claimants who are already getting SDP are barred from claiming UC and can continue to get HB. My client has just taken on a tenancy and has started living alone (no CA). My feeling is as that as soon as that happened he was entitled and there the UC barring applies.
My client has just taken on a tenancy and has started living alone (no CA). My feeling is as that as soon as that happened he was entitled and there the UC barring applies.
I agree “receipt” is not a good word to use, but if I understand your case correctly, there is no entitlement either, as entitlement depends on making a claim for benefit.
At the stakeholders meeting yesterday we were told that all new claims are checked against the CIS system and should pick up if a SDP was in payment in one of the legacy benefits within the last month and then the claim will not be accepted. The guy said that they also check if they have info that would indicate a SDP should be in payment (although it was pointed out that CIS wouldn’t necessarily have all that info eg whether a CA award in place). He confirmed that where the DWP hold the info that a SDP should be in payment then even if it wasn’t the claimant could be returned to legacy. However, I raised the situation where at the point of the UC claim, the PIP claim was under appeal but later successful and he thought that that person would not be able to return to legacy because the information was not available at the time of the UC claim. He did say that he would go back and check the legislative basis for that and get back to us - let’s see what he says….
Daphne was there any discussion on who might be regarded as a “claimant” or are they sticking with their “only one member of a couple can receive the SDP, so the other member misses out on protection because they are not the claimant” approach?
My client has just taken on a tenancy and has started living alone (no CA). My feeling is as that as soon as that happened he was entitled and there the UC barring applies.
I agree “receipt” is not a good word to use, but if I understand your case correctly, there is no entitlement either, as entitlement depends on making a claim for benefit.
That would only be the case if they weren’t already receiving a legacy benefit other than HB which can include the SDP (ESA, JSA or IS). Their entitlement to SDP on any of those benefits would start immediately they moved to the new address where they now live alone although they would have to notify a change of circs to make it happen.
I think they should be able to make a valid HB claim - at least from the second day after they move.
[ Edited: 6 Mar 2019 at 12:54 pm by Jeremy Barker ]That would only be the case if they weren’t already receiving a legacy benefit other than HB which can include the SDP (ESA, JSA or IS). Their entitlement to SDP on any of those benefits would start immediately they moved to the new address where they now live alone although they would have to notify a change of circs to make it happen.
I think they should be able to make a valid HB claim - at least from the second day after they move.
Yes, I agree with that.
I even think he could claim on day one. Provided he subsequently notifies the other legacy benefit, I believe the claim should retroactively be accepted.
That would only be the case if they weren’t already receiving a legacy benefit other than HB which can include the SDP (ESA, JSA or IS). Their entitlement to SDP on any of those benefits would start immediately they moved to the new address where they now live alone although they would have to notify a change of circs to make it happen.
I think they should be able to make a valid HB claim - at least from the second day after they move.
Yes, I agree with that.
I even think he could claim on day one. Provided he subsequently notifies the other legacy benefit, I believe the claim should retroactively be accepted.
Just had DWP saying to Housing Benefit staff that because SDP not in payment/eligible in last month it would be a UC claim for housing costs. My opinion is that the second my client moves and becomes eligible for SDP he simultaneously is excluded from claiming UC.
Sigh. I’ve said it countless times but it never gets old: the last people HB should take any notice of about this are DWP. If your judgement is telling you one thing and DWP is saying another, start from a presumption that DWP is wrong.
It is probably a good idea to delay the HB claim for a week or two because it will automatically be backdated one month (on ESA(ir) etc and HB claimed within a month of new liability starting) - then there can be no room for any argument about timing.
I’m not taking notice of DWP, i’m trying to tell HB to make their own determination on the inclusion of SDP in the HB calculation. It’s HB section that are wavering in the face of DWP. Fortunately the accommodation could come under supported exempt accommodation and thus payable anyway but just raising the point that not everyone is ‘down with the programme’ as folks hipper than me say.
One minute. Are you trying to rely on entitlement to SDP within HB itself, not another legacy benefit?