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SDP gateway

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ripley
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I have a client who was on esa then failed medical in Feb 2019 and has signed up for UC
he has put in an appeal for his ESA and it has been accepted awaiting a hearing
he receives enhanced DL of PIP and STD Mob
obviously I am concerned he has lost his SDP
If he has SDP award on his HB is this enough to argue the DWP should not have accepted his UC claim?
any thoughts would be appreciated
Regards
Helen

[ Edited: 25 Apr 2019 at 12:14 pm by ripley ]
HB Anorak
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Yes, SDP in the HB award should have prevented a UC claim in February.  Consensus in previous similar discussions seems to be that the discovery/reinstatement of an SDP after UC has been awarded renders the whole UC experience null and void: on any day when the claimant has an award of HB/IS/ESA/JSA and the applicable amount includes an SDP, it is not legally possible to claim UC - this includes cases where the SDP was not detected at the time of the UC claim and cases where the SDP is awarded retrospectively (typically when a PIP appeal succeeds).  In cases like this, DWP has to make it as if the UC claim never happened and put legacy benefits back into payment.  That is how forum members see it.

past caring
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Just to add, my LA (Southwark) has accepted the argument in those cases where it has been an issue.

David Hornell
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Recent case similar to above.
Outcome was that client was eventually allowed to withdraw UC claim and successfully made claim to ESA which includes the Severe Disability Premium.

The Facts of the case are as follows:-

client was receiving Employment and Support Allowance until 09/01/2019. He was remanded in custody for the period 10/01/2019-13/02/2019.

20/02/2019 – He made a claim to Universal Credit

28/02/2019- successful Personal Independence Payment Appeal – reinstated Personal Independence Payment from 19/09/2018. As a result client had entitlement to the Severe Disability Premium from 19/09/2018 – continuing entitlement to Housing Benefit throughout period in custody. 

14/03/2019 - UC claim withdrawn and ESA claim made – on basis that client meets amended Gateway conditions as he has had entitlement to SDP back to September 2018 in his Housing Benefit Claim.

20/03/2019- Advised by Housing Benefit Section that SDP now included in award back to 19/09/2018 – stop notice returned to UC as client has entitlement to SDP at the date of UC claim.  Housing Benefit also continues to be due for the period on remand so there is no break in the HB claim and he has been entitled to SDP within his HB from date of PIP reinstatement 18/09/2018. ESA initially refused to allow the claim and later allowed claim to be submitted.

The Legislation seems to be clear in that Regulation 4A of The Universal Credit (Transitional Provisions) (SDP Gateway) Amendment Regulations 2019 -
states that no claim can be made for Universal Credit on or after 16/01/2019 by a single claimant who is or has been entitled to an award of an existing benefit that includes a severe disability premium. No matter how you view this case there can be no debate that he was entitled to Housing Benefit with a Severe Disability Premium on the date of his original claim for Universal Credit.

DWP have now come back with the following response

“There are no grounds to return the claimant to legacy in this case.
At the time the UC award was made the claimant did not have entitlement to SDP, the outcome of the appeal was received later and does not invalidate the UC award.
In these cases the legal view is that the result of the appeal or MR was not known until after the claim, so regulations 8 and 13 of The Universal Credit (Transitional Provisions) Regulations 2014 require the claimant to remain on UC.”

Our concern now is whether DWP will now no longer allow the UC claim to be withdrawn thus leaving the claimants in limbo .  Is anyone aware of how DWP is now treating these withdrawal requests and position reinstating ESA ?

Charles
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It’s an interesting interpretation of reg 4A, but even if it’s correct, they cannot force your client to “remain on UC”. A claim for UC can always be withdrawn before it’s decided, and an award can also be terminated at any point, if the claimant so wishes.

The only argument they could now have for refusing the subsequent ESA claim is that the HB award is incorrect. I’m not sure they can argue that, as the LA who administer the HB claim have decided there is entitlement.

MM1235
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Hi Helen etc.

It’s getting more and more messy - meaning - cases where SDP entitlement is established well after UC has started - given how long PIP can take from claim to appeal decision - will have the difficulty that the UC claim is decided and comprehensively in payment. If the claimant stops the UC claim to claim ESA s/he will have the problem if the delay in payment but also that there is that whole prior period.

I’m about to attempt a related argument that the cbESA (claim in before new-style/lobster pot regs) can be reviewed to add irESA but think it’s likely to fail for the UC period.

That being the case we are left with claiming compensation.

Anyone have any ideas?

Any outcomes Mrs Ripley?

jane

ripley
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no outcomes yet -will update once I receive a response
many thanks
Helen

wbamic
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David Hornell - 14 May 2019 03:20 PM

Recent case similar to above.
Outcome was that client was eventually allowed to withdraw UC claim and successfully made claim to ESA which includes the Severe Disability Premium.

The Facts of the case are as follows:-

client was receiving Employment and Support Allowance until 09/01/2019. He was remanded in custody for the period 10/01/2019-13/02/2019.

20/02/2019 – He made a claim to Universal Credit

28/02/2019- successful Personal Independence Payment Appeal – reinstated Personal Independence Payment from 19/09/2018. As a result client had entitlement to the Severe Disability Premium from 19/09/2018 – continuing entitlement to Housing Benefit throughout period in custody. 

14/03/2019 - UC claim withdrawn and ESA claim made – on basis that client meets amended Gateway conditions as he has had entitlement to SDP back to September 2018 in his Housing Benefit Claim.

20/03/2019- Advised by Housing Benefit Section that SDP now included in award back to 19/09/2018 – stop notice returned to UC as client has entitlement to SDP at the date of UC claim.  Housing Benefit also continues to be due for the period on remand so there is no break in the HB claim and he has been entitled to SDP within his HB from date of PIP reinstatement 18/09/2018. ESA initially refused to allow the claim and later allowed claim to be submitted.

The Legislation seems to be clear in that Regulation 4A of The Universal Credit (Transitional Provisions) (SDP Gateway) Amendment Regulations 2019 -
states that no claim can be made for Universal Credit on or after 16/01/2019 by a single claimant who is or has been entitled to an award of an existing benefit that includes a severe disability premium. No matter how you view this case there can be no debate that he was entitled to Housing Benefit with a Severe Disability Premium on the date of his original claim for Universal Credit.

DWP have now come back with the following response

“There are no grounds to return the claimant to legacy in this case.
At the time the UC award was made the claimant did not have entitlement to SDP, the outcome of the appeal was received later and does not invalidate the UC award.
In these cases the legal view is that the result of the appeal or MR was not known until after the claim, so regulations 8 and 13 of The Universal Credit (Transitional Provisions) Regulations 2014 require the claimant to remain on UC.”

Our concern now is whether DWP will now no longer allow the UC claim to be withdrawn thus leaving the claimants in limbo .  Is anyone aware of how DWP is now treating these withdrawal requests and position reinstating ESA ?

 


Hello
Similar to David’s post i have someone who we are trying to look at the possibility of leaving the lobster pot. 

The background is
Nov 2018 -  failed WCA and submits a UC claim. Is in temporary accommodation Housing benefit award continues.
Dec 2018 - UC goes into payment. 
May 2019 - Award PIP Standard Rate Daily living having been on LRC DLA. 
June 2019 - Visits our office as wants representation at ESA appeal on the NOV decision. 

So my thought is that from May 2019 he will now have a SDP in his Housing Benefit claim.  Meaning i think he could close the UC claim and go ahead and make a new claim for Income Based ESA? 

I phoned the 0800 181 4049 UC SDP helpline .  I was told the situation i described is not possible because of Income Based ESA being abolished for this person in November 2018.  I was told that he cant close his UC claim (made me chuckle).  I think this is an incorrect interpretation of how things stand for this person? 

 

 

wbamic
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Sorry for a mini rant!.  Have just had an outcome on my 1st attempt on getting someone back onto ESA after closing there UC claim when they have a Housing Benefit award in payment with SDP.  The attached ‘decision’ letter isn’t really helpful!No appeal rights listed!

We made an effort in this case to include a letter with the ESA1 explaining the situation and that SDP has been included in HB for months. 

Onto Reconsideration we go.

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Elliot Kent
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wbamic - 03 July 2019 04:35 PM

Sorry for a mini rant!.  Have just had an outcome on my 1st attempt on getting someone back onto ESA after closing there UC claim when they have a Housing Benefit award in payment with SDP.  The attached ‘decision’ letter isn’t really helpful!No appeal rights listed!

We made an effort in this case to include a letter with the ESA1 explaining the situation and that SDP has been included in HB for months. 

Onto Reconsideration we go.

What a fantastic letter. We are not refusing your claim but are “unable to process it” and there is nothing you can do about that.

Incidentally, you do not need to seek mandatory reconsideration in this case and can lodge an appeal directly if you wish. This is because the MR requirement only applies if the initial decision letter “includes a statement to the effect that there is a right of appeal in relation to the decision only if the Secretary of State has considered an application for a revision of the decision.” which this decision notice doesn’t. See Reg 3ZA D&A Regs 1999.

wbamic
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Just to update on this.  I requested a reconsideration of the decision to not process the ESA claim.  I have been told that there won’t be a reconsideration because it is not a decision that has any appeal rights!  After going away a speaking to colleague that call handler then spouted off that SDP in housing benefit dose not count and it has to be SDP in ESA and that you can’t ‘just close a UC claim’.  So i am going to proceed straight to appeal now and see what happens.  Culturally it seem virtually impossible to get anyone at the DWP to understand the idea of leaving UC and returning to legacy benefits.

Timothy Seaside
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My experience with this has been that the local JCP has been quite helpful and has understood what we were saying about SDP in HB (after we explained the SDP gateway rules to them), and it was ESA who couldn’t grasp the idea that you could get an SDP in HB. I had a long telephone conversation with somebody at ESA where I explained how the SDP works in HB - I have the advantage of working for the local authority so they were happy to listen to what I was saying about HB. I think the letter you received sort of sums up the gap in their conceptual understanding - it says you “must have been paid Severe Disability Premium” which is, of course, not how it works in HB, and not what the regs say.

Obviously your case is going to appeal now, but I’d suggest you ask the local HB department to provide confirmation that the SDP is included in the HB calculation. Once you’ve got that, you could try and apply again.

wbamic
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Timothy Seaside - 11 July 2019 11:01 AM

My experience with this has been that the local JCP has been quite helpful and has understood what we were saying about SDP in HB (after we explained the SDP gateway rules to them), and it was ESA who couldn’t grasp the idea that you could get an SDP in HB. I had a long telephone conversation with somebody at ESA where I explained how the SDP works in HB - I have the advantage of working for the local authority so they were happy to listen to what I was saying about HB. I think the letter you received sort of sums up the gap in their conceptual understanding - it says you “must have been paid Severe Disability Premium” which is, of course, not how it works in HB, and not what the regs say.

Obviously your case is going to appeal now, but I’d suggest you ask the local HB department to provide confirmation that the SDP is included in the HB calculation. Once you’ve got that, you could try and apply again.


Thanks for this.  We have managed to get the ESA into payment!  Interestingly this was the response I got from HB department when requesting evidence of the SDP in the HB claim. 


‘As he is in receipt of a passported benefit, the severe disability premium is not included on the assessment as full benefit is being paid.

We have his PIP enhanced care and mobility also on the claim.’

 

Charles
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The Explanatory Memorandum to the new regs includes the following:

7.51 There are also some other groups of claimants who will be included in the transitional payments scheme. These are:
    a. Those who become entitled to backdated amounts of SDP following Legal Entitlement and Administrative Practices (LEAP) exercises being undertaken by the Department (e.g. they are subsequently found to have been entitled to SDP after they moved onto UC and it is backdated to before their UC claim).
    b. Those whose PIP applications have taken a long time to be processed. Once processed, SDP eligibility is backdated to the period up to when they claimed UC.
    c. Those who have not received SDP in legacy due to maladministration/error e.g. those whom the Department did not identify as having entitlement and therefore never had it included in their award.
    d. Those who win their appeal or Mandatory Reconsideration of their legacy award and were therefore entitled to SDP in the period before they moved to UC.
    e. Claimants who have inadvertently breached the SDP gateway to claim UC.

Andrew Dutton
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Charles - 24 July 2019 06:30 AM

The Explanatory Memorandum to the new regs includes the following:

7.51 There are also some other groups of claimants who will be included in the transitional payments scheme. These are:
    a. Those who become entitled to backdated amounts of SDP following Legal Entitlement and Administrative Practices (LEAP) exercises being undertaken by the Department (e.g. they are subsequently found to have been entitled to SDP after they moved onto UC and it is backdated to before their UC claim).
    b. Those whose PIP applications have taken a long time to be processed. Once processed, SDP eligibility is backdated to the period up to when they claimed UC.
    c. Those who have not received SDP in legacy due to maladministration/error e.g. those whom the Department did not identify as having entitlement and therefore never had it included in their award.
    d. Those who win their appeal or Mandatory Reconsideration of their legacy award and were therefore entitled to SDP in the period before they moved to UC.
    e. Claimants who have inadvertently breached the SDP gateway to claim UC.

The last item on that list has been bothering me. if someone has inadvertently breached the gateway, should they not go back to legacy benefits as the UC claim was not allowed ?

Charles
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Yes, I had the exact same thought!

There may be some cases where it is beneficial for the claimant to stay on UC and just get the transitional payments, but I don’t know what the legal basis would be.