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Settled Status granted but DWP say not eligible for ESA

 

Cinimod
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I have a client an EU national (French) been living in the UK since July 2009. Originally a student; Degree then Masters. Has some self employed work under her belt from 2012/13. Did not have medical insurance when she arrived in UK. Recently applied and granted Settled status under the new HO scheme.
Has been receiving ESA-NINO credits since July 2017, but no payments. She has even attended medicals.But they stated she doesn’t meet HRT.
She contacted DWP-ESA to informs of change in status, but they are saying she isn’t eligible for payment. She has also been self employed for about a year now on and off. Receives Housing Benefit. I thought that once you receive settled status, would qualify for payment? They have advised her to visit her local JCP with her passport and proof of Settlement and they will look into it. Any advice or comments appreciated.

     
Elliot Kent
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We have seen that the DWP has been taking an inconsistent approach to settled status - see this thread and otherwise: https://www.rightsnet.org.uk/forums/viewthread/14028/P30/

Some at the DWP have it into their heads that settled status is irrelevant to a benefit application, whereas others understand it isn’t.

To be clear, to my mind, there is no reason why settled status would not - of itself - amount to a right to reside sufficient for the purposes of means-tested benefits under the current law. It is just indefinite leave to remain achieved by a different route. If a national of India or Australia or Brazil with ILR claimed benefits, nobody would be trying to apply EU rules to them - ILR clears that hurdle of itself.

The root of the problem is that the DWP has failed to produce any clear guidance (or any guidance at all) on the issue so DMs seem just to be left guessing.

However none of this is likely to assist your client because - unless she is getting the SDP in her housing benefit (i.e. getting DLA/PIP at the right rates, living alone and with no carer) - it is simply not open to her to make an income related ESA claim, which is what she is trying to do. It will have been replaced by Universal Credit, so that is what she needs to claim.

I would be suggesting that she claims UC and that, if that is refused, you will need to challenge this either by MR or by threatening judicial review (see the template letters here: http://www.cpag.org.uk/content/judicial-review-pre-action-letters

     
Cinimod
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Hi Elliot, thanks for the post, really helpful and clear.
We’re in a no mans land at the moment, l guess, until there’s guidance or a ruling. Looks like there are lots of posts about popping up about it too.
Just a point on the PIP, my client receives; standard daily and enhanced mobility for a long term back condition. Live’s alone and has a carer visit once a day.

     
Timothy Seaside
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Cinimod - 14 March 2019 12:29 PM

Hi Elliot, thanks for the post, really helpful and clear.
We’re in a no mans land at the moment, l guess, until there’s guidance or a ruling. Looks like there are lots of posts about popping up about it too.
Just a point on the PIP, my client receives; standard daily and enhanced mobility for a long term back condition. Live’s alone and has a carer visit once a day.

So you’re saying she gets an SDP in her Housing Benefit, yes? In which case she can’t claim UC.

But in any event, the settled status ILR means she can claim something; whether it’s UC or legacy benefits.

      [ Edited: 14 Mar 2019 at 12:51 pm by Timothy Seaside ]
Cinimod
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Hi Timothy,
She’s not receiving SDP in HB.
She’d like to pursue the ESA route for now and see where it leads.
She’s reluctant to claim UC at the moment, she thinks it’ll be a long battle, that’ll mean rent arrears and all the associated stress that goes with it.

     
Timothy Seaside
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If she gets HB, doesn’t live with a non-dependant, nobody gets Carers Allowance for her, and she gets PIP DLS then she is entitled to an SDP in her HB. She wouldn’t necessarily be aware of this, because it just means her applicable amount would be higher - which might not make any difference to her award if her income is low.

Depending on how the LA sets out its HB decision notices, you might be able to tell if there’s an SDP included in her applicable amount. Failing that, they should be able to tell you very quickly if you give them a call.

As Elliott said, she can’t claim IR-ESA (or C-ESA) unless she’s entitled to an SDP in her HB. Are you saying she’s claiming new-style ESA?

     
Cinimod
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Hi Tim,
Not sure about SDP HB. We’ll give them a call tomorrow to find out. Although, l suspect not. If not, would you advise asking them to recalculate based on PIP award?
she’s receiving national insurance contributions at the moment on her ESA. Assuming that’s the new style.

     
Timothy Seaside
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Premiums (and components) in HB only make a difference to the award if the claimant has income exceeding their personal allowance. I explained this recently to somebody in ESA who was having trouble getting his head around the idea that an SDP in HB is not an additional amount you receive, but an extra income allowance. And for anybody getting an SDP in ESA, the SDP in HB is completely irrelevant to the calculation (because the IR-ESA means you have no income for the HB calculation).

If your client has not been getting full HB then it’s definitely worth checking the SDP is being applied. It’s possible that the HB section doesn’t have all the information they need to establish entitlement to an SDP. Unlike the DWP, I don’t think they can see whether anybody’s getting Carers Allowance relating to your client (although they should know there’s no non-dependant living with them).

The question about whether you can get an SDP applied retrospectively may depend on whether the PIP was awarded after the HB, and whether the LA should have asked more questions when they knew about the PIP to establish whether an SDP applied. I feel a little out of my depth here because I’ve certainly never tried to get an any time revision of an HB decision to get an SDP included. Is it official error?

But from what you’ve said, it sounds as though an SDP is payable in the HB, and this bars your client from being able to claim UC (lawfully); even if she desperately wanted to.

     
Ianb
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Timothy Seaside - 14 March 2019 06:12 PM

Premiums (and components) in HB only make a difference to the award if the claimant has income exceeding their personal allowance. I explained this recently to somebody in ESA who was having trouble getting his head around the idea that an SDP in HB is not an additional amount you receive, but an extra income allowance.

I have had the same experience. Never heard of SDP in HB. Look at the HB claim and say they can’t see payment of SDP etc. Given that this is just about the only reason someone can be making an ESA claim now it would have been nice if claims staff had been briefed!

     
Cinimod
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I’ll keep you posted on how things go.
Thanks for your really helpful advice-l’ve learnt something new, which is a good thing!