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Backdating new ESA claim with SDP.
AAARRRGGHHH indeed. That’s a total pain, I was hoping that we wouldn’t see situations like that, but i’m not surprised that DWP say that it is not possible to stop the migration process.
I still think its open to challenge as I think the caselaw is woolly on the point of whether or not a withdrawn claim still exists, particularly in cases like Timothy’s. It would be interesting to see if this is a rogue decision after 16/1/2019 or whether we will see more of them.
I think I will go along with Timothy’s argument that Reg 4A brought in by the SDP Gateway Regs means that any UC claim made within the month before 16/1/19 is picked up by the Regs, as they also amend the relevant Commencement Order and invalidate the migration.
Someone please tell me if I am being a fule.
OK, doubts have set in, I’m backing away from this argument (I think I’d msunderstood Timothy’s point) in the context of the case in front of me. I’m looking at the wording:
‘No claim may be made for universal credit on or after 16th January 2019’ (etc)
I had thought that this may then protect claims made between 16/12/18 and 16/1/19 but now I don’t think so. I think it’s only looking forward from 16/1.
However, as per Timothy’s case, if the person was migrated on 4/1/19, did HB carry on for two weeks and carry them over the line….?
More coherent thoughts from clearer thinkers always appreciated.
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.
DWP insist ‘entitled to’ refers to being ‘in receipt of’ but what about cases where contributory ESA is in payment however claimant should also be in receipt of income related ESA (which would have included SDP) due to capital falling below £16k (they also receive PIP) - UC response is that it is not possible to back-date an ESA income related claim therefore claimant must claim UC. Is this correct?
OK, doubts have set in, I’m backing away from this argument (I think I’d msunderstood Timothy’s point) in the context of the case in front of me. I’m looking at the wording:
‘No claim may be made for universal credit on or after 16th January 2019’ (etc)
I had thought that this may then protect claims made between 16/12/18 and 16/1/19 but now I don’t think so. I think it’s only looking forward from 16/1.
However, as per Timothy’s case, if the person was migrated on 4/1/19, did HB carry on for two weeks and carry them over the line….?
More coherent thoughts from clearer thinkers always appreciated.
I’m not saying any claim after 16/12/2018 is caught by Reg 4A. The month is counted back from the date we are at when the new claim is being made. In my client’s case, she ended her UC claim on Wednesday (06/02/2019). She had claimed UC on 15/01/2019. She was then unable to make a new claim for UC on 06/02/2019 because she had SDP on her HB up until at least 15/01/2019 - less than a month before.
If she’d claimed UC on 20/12/2018, she wouldn’t have been able to do this on 06/02/2019 because her HB would have stopped more than a month before that, so she wouldn’t have had an SDP within the past month. She would still have had a window of opportunity up to a month after the HB stopped; but she would have missed it by now.
The important date is not 16/01/2019 - that’s just when Reg 4A came into existence - the important date in any case is the date when the new claim is being made. The question then is whether, at that date, there had been SDP entitlement within the past month.
I’m being a bit sketchy about HB end dates here. There’s a two week run on payment of HB when an existing claimant claims UC, but I’m not sure whether that actually means that the HB stops two weeks later, or just that they get a payment equivalent to two weeks of HB. Apparently stop notices now cause the HB to end two weeks after the UC starts, but I’m not sure whether that’s what is really happening in law.
DWP insist ‘entitled to’ refers to being ‘in receipt of’ but what about cases where contributory ESA is in payment however claimant should also be in receipt of income related ESA (which would have included SDP) due to capital falling below £16k (they also receive PIP) - UC response is that it is not possible to back-date an ESA income related claim therefore claimant must claim UC. Is this correct?
I think “entitled to” means there is a benefit in payment that an SDP can be attached to, and that the conditions for entitlement are met.
So if somebody is getting ESA and should be getting an SDP, but the DWP haven’t applied it, they are still entitled to it. It is possible for the award to be revised and the SDP to be applied retrospectively.
But if they aren’t getting an SDP benefit, they can’t be entitled to an SDP - regardless of the fact they are getting PIP, living alone and have no carer. There is nothing to revise - there is no benefit to attach the SDP to.
If I’ve understood your question correctly, there is an ESA claim in existence. You are not asking them to backdate a claim, you are asking for a revision which would reveal the correct historical situation - i.e. that there was entitlement to an SDP. But the problem you’re going to have is that they’d need to accept that this is correct before they will be able to see that Reg 4A applies.
there are definitely still sda clients and therefore assuming sda/is clients as curiously sda is a benefit that is being devolved to scotland (which makes no real sense but here we are).
I’m being a bit sketchy about HB end dates here. There’s a two week run on payment of HB when an existing claimant claims UC, but I’m not sure whether that actually means that the HB stops two weeks later, or just that they get a payment equivalent to two weeks of HB. Apparently stop notices now cause the HB to end two weeks after the UC starts, but I’m not sure whether that’s what is really happening in law.
I’m not going to be sketchy about this any more. The two week HB run on is real - it is not just two weeks worth of HB. Regs 8(2)(a) & (2A) of the UC (TP) Regs say the HB claim terminates on the last day of the period of two weeks beginning with the day after the day before the first date on which the claimant is entitled to UC in connection with the claim. Couldn’t be much clearer.
So, they’ve accepted the new claim for IR-ESA and this week my client received £137.40 - basic ESA plus SDP. I was expecting her to get the EDP as well - because she gets PIP DLE - am I missing something?