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Housing Beneift and ENTITLED but not RECIEVING an SDP
My client was living in one London Borough, and met the threshold for an SDP to be payable in Housing Benefit. Ie; living alone, getting PIP daily living component, no-one getting carers allowance or carers element. She worked part time.
The Local Authority did not award an SDP in the HB applicable amount - which was an error on their part.
Client then moved to a different London borough, and so was told to claim Universal Credit. Technically she is entitled to a SDP, she just didn’t receive it.
The challenge for us is this - does the claimant have to actually receive the SDP, or does it count if you would have got an SDP but for an oversight of the LA or DWP
I think only the local authority administering the current HB award can decide that someone is entitled to the SDP - I don’t think it can be second-guessed by a third party. Regulation 89(1) says that any matter requiring determination under the HB Regs is to be determined by the relevant authority unless the regulations specify otherwise. HB decision making powers are derived from Schedule 7 to the Child Support, Pensions and Social Security Act 2000 which also provides for decisions on claims and superseding decisions all to be made and revised by the relevant authority. “Relevant authority” is an authority administering HB, which then takes us to the Social Se4curity Administration Act 1992 where s134 says that HB is to be administered by a particular authority.
So what is needed here is for that authority to revise its decision and include the SDP, so that the claimant is entitled to such a premium at the point when she moves. If she has not claimed UC in the meantime that should be OK.
If she has claimed UC in the meantime it is messier.
There is a school of thought that entitlement to the SDP must exist in the present tense in real time on any day when the claimant wishes to claim a legacy benefit - it isn’t enough if entitlement in respect of that day is determined at a later stage. I think that is an extremely narrow way of reading it and I would argue that retrospectively determined SDP entitlement is sufficient, although it certainly makes life easier if there hasn’t been a UC claim.
I’m replying, but may be way off the mark here,
States,
claimants who only qualified for the SDP as part of their housing benefit award will not be eligible for the payment;
I think the original question was about migration (or not) to UC, rather than transitional payments - unless I’m reading it wrong!
I don’t know if this information is useful to you but I suspect it will be if I have understood the original quote.
Members of Thirteen’s UC Support Team have just successfully challenged two UC claims and got both reverted back to legacy benefits where both customers met conditions for SDP but neither had SDPincluded in their legacy benefits at time UC claim was made.
Both related to PIP (Daily Living) awards being made after UC claim date, backdated to pre UC claim date.
Under ‘relevant benefit’ rules, both HB awards were reassessed to include SDP (one only being 1 days before - PIP from 16.9.19, UC claimed 17.9.19), meaning the UC claims were null and void under Reg 4A.
Both were very difficult to challenge and would not have been possible without the aid of the respective HB department (UC would not revoke the stop notices as SDP was hidden in the HB).
Both HB departments pursued the DWP on our behalf to bring these great results.
Motto - work with your HB Department wherever you can and don’t give up.
That’s really interesting Lisa - and encouraging!
schedule 3 doesn’t talk about entitlement though. It uses the phrase “applicable to a claimant”. A premium doesn’t require “entitlement”; a premium is “applicable” if the conditions -in this situation at para 14 sch 3 HB regs- are met.
Entitlement to an award requires determination; the premiums are applicable -whether or not they are applied- if the conditions are met.
To further illustrate this; the SDP requires that a person is “in receipt” of PIP or DLA at the required rate; so my people coming out of hospital can’t get it in their ESA award, thus claim HB on their new tenancies, until PIP put their award back into payment. The SDP isn’t “applicable” although they are to all intents and purposes (although straying from strict statutory terminology) “entitled” to it.
This isn’t really a question of “entitlement” to the SDP, it’s a question of whether it’s “applicable” to an award to which the claimant is entitled.
[ Edited: 18 Oct 2019 at 10:00 am by Dan_Manville ]I don’t know if this information is useful to you but I suspect it will be if I have understood the original quote.
Members of Thirteen’s UC Support Team have just successfully challenged two UC claims and got both reverted back to legacy benefits where both customers met conditions for SDP but neither had SDPincluded in their legacy benefits at time UC claim was made.
Both related to PIP (Daily Living) awards being made after UC claim date, backdated to pre UC claim date.
Under ‘relevant benefit’ rules, both HB awards were reassessed to include SDP (one only being 1 days before - PIP from 16.9.19, UC claimed 17.9.19), meaning the UC claims were null and void under Reg 4A.
Both were very difficult to challenge and would not have been possible without the aid of the respective HB department (UC would not revoke the stop notices as SDP was hidden in the HB).
Both HB departments pursued the DWP on our behalf to bring these great results.
Motto - work with your HB Department wherever you can and don’t give up.
This is interesting, as DWP seem to believe that this shouldn’t work. See for example para 7.51(b) here.