Forced onto UC instead of ESA

I’m out of the office at the moment and can’t check anything. I have come across a claimant forced to claim UC instead of ESA. She is a single person and was in full time ed at the time and in receipt of PIP DL. I advised her to claim ESA last year and she submitted an ESA1 on 30th August. She then got a call from ESA on 19th September, who advised that as she was in a UC area, she must claim that instead. This is the first one of these I have dealt with. So what can she claim now as she would have been entitled to SDP?

Can she argue incorrect advice and ask to be put onto ESA or does she need to apply for the compensation?

Are you saying she was entitled to SDP through a different benefit, or just that she would have received SDP in any potential ESA claim?

She would have been entitled to it. She wasn’t previously in receipt of anything other than PIP.

Unfortunately, DWP are correct in that case. She needed entitlement to SDP through a different benefit in order to claim ESA.

Ok thanks Charles.

This has nothing to do with the SDP gateway because it didn’t exist at the dates concerned, this is to do with full/live service.

But you have not told us the two most important bits of information: (1) When did her postcode go full service? and (2) Did she actually claim UC and if so when?

If it is correct that the area was full service when she claimed ESA, then she should have taken the DWP advice and claimed UC. If she didn’t then there is no comeback against anyone. The only thing she could claim now would be UC. The fact that she has some abstract hypothetical entitlement to the SDP on a benefit which no longer exists for her doesn’t change this.

If the DWP are wrong, and it was a live service area when she claimed ESA, then they still need to deal with her ESA claim - which is probably payable and probably would include the SDP. If she did take their advice and claimed UC, then she will be entitled to the compensation payments as set out in the new regs / could make a garden variety maladministration complaint / could speak to Leigh Day.