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Forum Home  →  Discussion  →  Universal credit migration  →  Thread

Backdating new ESA claim with SDP.

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Timothy Seaside
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This is a mess.

Client has cerebral palsy, has never worked, gets PIP enhanced DL & M. In December last year, the DWP realised she shouldn’t be getting IS and stopped it. I have no idea why she was getting IS - not a carer or parent, and in her late 30s. According to our HB system she was getting IS from at least 2004. I can’t see that she ever got IB. But this is a mystery for another day.

Her mum tells me they received a letter from DWP on 14 January to say the IS had stopped. On 15 January 2019 she claimed UC. HB got the stop notice the next day, and it looks like the HB ended on 28 January.

So I’m advising her to end her UC claim tout de suite, and claim ESA instead. I don’t think this should be controversial - HB agree there’s no problem, and I’m going to speak to our local Jobcentre this afternoon.

My question is about backdating the ESA claim (so maybe this post shouldn’t be under the UC migration heading?) - I can’t see any reason why she can’t ask to backdate it to 16 January, but can she ask to backdate it to a time when she couldn’t have claimed ESA (i.e. when the IS stopped, in December)?

Andrew Dutton
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If the claim is that old and had never been migrated to ESA, would they not have continuing entitlement to IS on the pre-2008 ‘sick and disabled’ heading? I don’t think DWP had any grounds to stop the claim - ?

Paul_Treloar_AgeUK
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Andrew Dutton - 05 February 2019 02:34 PM

If the claim is that old and had never been migrated to ESA, would they not have continuing entitlement to IS on the pre-2008 ‘sick and disabled’ heading? I don’t think DWP had any grounds to stop the claim - ?

Yes, I was wondering about this, we came across an Income Support client recently who’d never been migrated.

Mike Hughes
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Interesting. Have come across a couple of IS cases where there’s been no grounds for closure (putting aside for a moment that you can’t just end a claim anyway) and the advice is, unsurprisingly, claim UC. I’ve begun wondering whether someone is just identifying IS cases and getting read to press the “off” button on the IS system. Latest was a carer getting CA taken off IS despite the 8 week run on applying.

Timothy Seaside
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Once we’ve got the UC/ESA/HB situation sorted, I’ll ask her mum for a peek at the IS letter.

The notes on the HB claim include some bits they’ve cut and pasted from CIS. They seem to be saying that there was no COE from March 2001, and the comments say (several times) that she needs to be advised to claim UC URGENTLY. And it says COE was possibly disabled student.

To be honest, if the outcome is that she ends up on ESA with support group, EDP, and SDP, I don’t think she’s going to be too upset about the IS stopping.

Andrew Dutton
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Please keep us posted on progress on this.

I must admit I can’t see how there is an IRESA entitlement. What is its basis?

Without better information from DWP, it still looks as if this is someone who has been on IS as ill/disabled (whether or not as a student) because they were never migrated to ESA. If that’s right then my thought is that IS should have carried on until UC ‘natural’ migration or the eventual managed migration. DWP appears instead to have ended the claim when they shouldn’t have.

In thinking this, I assume that the UC Commencement Orders have over-written the rules for migrating IS to IRESA - so that’s not a viable step? And I can’t see a basis for a new IRESA claim?

DWP is going to have to explain why they think they could stop the IS claim, and if I’m right they will either have to restore IS if there is a mechanism for doing so, or compensate the claimant for losses - ?

More than happy to be proved wrong.

Timothy Seaside
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I think she can apply for IRESA because she had HB with an SDP until 28 January, so she is caught by the new Reg 4A of the Transitional Provisions Regs:
She was entitled to an SDP with a benefit within the past month, and;
She has continued to satisfy the qualifying criteria (i.e. PIP DLE, no carer, lives alone).
So she can’t claim UC, and can claim ESA and HB.

I have had another read through the notes from CIS and it does sort of sound as though the reason for her being on IS has been lost - there was something about “PAPERS FROM FILING” (everything’s in capitals). But I haven’t seen the actual decision letter to the claimant yet - maybe that will be more enlightening.

Andrew Dutton
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I had just made my slug-witted way round to the issue of the January dates as you replied!!! Thanks.

HB Anorak
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On the narrow technical question of whether an EDA claim made after 16 January can have effect before that date, yes I think so.  The local commencement orders all abolish ESA(ir) in respect of the whole period for which it is claimed, including any backdated period, but if the claimant has an SDP that doesn’t happen by virtue of Article 5A of the No 9 Order.

Timothy Seaside
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HB Anorak - 06 February 2019 11:12 AM

On the narrow technical question of whether an EDA claim made after 16 January can have effect before that date, yes I think so.  The local commencement orders all abolish ESA(ir) in respect of the whole period for which it is claimed, including any backdated period, but if the claimant has an SDP that doesn’t happen by virtue of Article 5A of the No 9 Order.

Thanks. That is what I was hoping, but I am having trouble fitting together the amendments to the commencement orders. The latest versions on legislation.gov.uk are supposed to be up to date to 31/05/2018, but 5A doesn’t include the 2017 SI 483 amendments, and appears to be missing at least one other previous amendment - I was starting to worry about disappearing down the rabbit hole.

Mike Hughes
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I am going to write a book called “Rabbit holes, lobster pots and righteous shambles”. Maybe just a song.

alang
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There are some potential issues here. I had a similar case to this back in September, claimant received letter stating IS stopped and made claim to UC. Found out later that there are a lot of these IS cases and he should have been migrated to ESA in 2011, apparently they are called ‘black hole cases’. Made complaint to IS and they reinstated and were going to put him through migration to ESA, but HB then refused to reinstate as the claim for UC was properly made in line with Reg 4 of WRA, they used Tax Credit decision from UT to back this up CTC/1276/2018.

I wanted to challenge through appeal as I thought caselaw left questions unanswered, but claimant did not want to take the risk and we managed to get original UC claim reinstated. Apparently as a result of this a national instruction was issued to not reinstate IS/JSA/ESA when UC claim has been made.

In your case the claim was made on 15/1/2019 and stop notice was issued, and the regs didn’t change until 16/01/2019 you maybe on sticky ground here, hopefully others will be better able to comment on this. I have not had a similar case recently so have not checked the regs in relation to this, so maybe wrong in this and I hope I am.

It will be interesting to see what happens.

[ Edited: 6 Feb 2019 at 02:28 pm by alang ]
Andrew Dutton
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I was getting boggled over the dates. But the SDP Gateway Regs are effective as of 16/1/19 and I think this is the bit that allows Timothy’s case to proceed as he describes:

‘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; ‘

- so as the IS was stopped (probably quite wrongly) within the previous month, the case is covered by the SDP Gateway.

This repeats what Timothy says above, but I’m trying hard to get an understanding of this so I’d like to be sure I’ve got this right - this time.

alang
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I’m sure you are probably right Andrew, and as I said I hope that I am wrong and also I am not sure if the CTC case applies. My mind is fried with it and it would have been so much more straightforward if he had just waited a day.

I suppose though I would still have the concern that as the claim was made on 15/01/2019 and that the SDP Gateway doesn’t change the effect of Reg 8 of the TP Regs and that if the UC claim is made then it is made. I suppose from my perspective it depends on when the decision is made that they satisfy the basic conditions of entitlement. I am sure I have read something that this made automatically once the claim is lodged, if that was done on 15/01/2019 then the claim was made properly in line with the regs as they stood on that day.

I still think that this gives so much room about what constitutes a decision on the basic conditions of entitlement and I did want to appeal my case on this basis.

Doesn’t change that it is an appalling administrative cock up and should never have happened and irrespective of the outcome, I would be lodging a very strong worded complaint, possibly through an MP.

Timothy Seaside
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Andrew Dutton - 06 February 2019 02:43 PM

- so as the IS was stopped (probably quite wrongly) within the previous month, the case is covered by the SDP Gateway.

Actually, the IS stopped more than a month ago, but the HB didn’t stop until last week, and there is an SDP in the HB, so that’s what gets it over the line.

I don’t think there’s any real ambiguity in the regs - if somebody has had entitlement to an SDP within the past month, and still qualifies, they can’t make a new claim for UC (this is what Reg 4A says). At the same time as Reg 4A was introduced it was also included as an exemption within the various commencement orders so that a person who can’t claim UC under 4A can claim ESA, HB, etc.

This doesn’t help somebody who claimed UC in November or earlier (as they couldn’t have been entitled to an SDP within the past month). But until March there are going to be a few cases where people who have gone over to UC will still be able to get out of it.

Andrew Dutton
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Guess what has just come up - claimant with CESA/IRESA and SDP, migrated to UC (for reasons as yet unknown, presumably house move) on 4/1/19.

Referrer has contacted the jobcentre to see if he can withdraw his claim to UC and continue to get ESA(IR) and HB from 16/1/19.  They have contacted ESA who have said they are unable to override the migration process once the legacy benefit has been stopped.

Arrrrrggggggg….....

 

[ Edited: 7 Feb 2019 at 11:57 am by Andrew Dutton ]