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SDP Gateway issue partner formerly on UC moving in with client on ESA

CHAC Adviser
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We’re having an argument with DWP over whether or not a client can continue on ESA in these circumstances.

Client is on ESA and has a claim for PIP which has given them an SDP. The partner was on UC also claiming PIP (so would have had entitlement to SDP but for being on UC). Partner moved in with the client and closed their UC claim shortly before moving in as they wanted to join their partners ESA.

My view is the ESA claimant was covered by the SDP gateway and continues to be covered by the SDP gateway as the partner isn’t terminal to the SDP (as they meet the conditions for SDP as a couple). So as a result is still excluded from making a claim for UC and as such it should simply be a change of circumstances for ESA which doesn’t require a new claim.

But the DWP brick wall is strong and thick so I want a second opinion to make sure we’re not barking up completely the wrong tree.

Paul_Treloar_AgeUK
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Seen the SDP gateway article from CPAG which covers this situation?

Under official guidance, the SDP gateway does not apply where a UC claim is treated as having been made on the formation of a couple by a single UC claimant and a person who was previously entitled to a legacy benefit (even with the SDP included).9 Arguably however, the SDP gateway should apply to certain claimants even where they form a couple with a UC claimant and would otherwise be treated as making a claim for UC – eg:

the couple live in temporary or specified accommodation and continue to be entitled to SDP in their HB on formation of the couple;
or

the UC claimant would her/himself fall within the category of a partner who can be ignored for the purposes of the SDP – eg, s/he gets a qualifying benefit or is severely sight impaired.

Obviously, second bullet is what applies to your clients. Might be an idea to contact their advice service to get some guidance on how to argue this?

CHAC Adviser
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Thanks Paul I think we might do that!

As an update we’ve now rung the DWP’s SDP Helpline and the adviser there has agreed with our interpretation but rather unhelpfully appears to be unable to do anything to actual help us beyond recommending we submit a formal complaint. I’m currently thinking of doing that and sending an ESA3 in with it and asking them to process the change of circumstances. At least then we’ll get something in writing out of them hopefully!

Charles
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I believe the argument being made in the CPAG article is that a claim which is treated as being made is still a claim, and therefore should be stopped by the SDP gateway.

DWP have a history of not agreeing to this. For example, when the live service was closed to new claims, the same distinction was made between actual claims and ‘treated’ claims. See the bottom of page 1 in the reply to a FoI request here.

What client has done (ending the UC claim prior to moving in) is also suggested in the CPAG article. However, after the change in guidance referred to here, that will only work if they close the claim before the end of the last complete AP before before moving in, which is unlikely to be the case. I think however that this change of guidance is extremely debatable, and you could attempt to argue against it at Tribunal.

HB Anorak
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They important fact to highlight in this case is that the UC claimant came off UC before the couple formed.  This means that at the point when the couple got together you had one existing legacy benefit single claimant, and one person who was no kind of claimant at all.  This is simply a change of circumstance affecting the rate of ESA - it doesn’t even need them to satisfy the SDP entitlement conditions.  Given that they do satisfy the SDP conditions, however:

- It is usually in SDP cases that this manoeuvre is financially advantageous, so there is some point in doing it, and
- with an SDP they can make other new legacy benefit claims to complement the ESA - if, for example, rent was being covered by the relinquished UC claim they can replace it with HB.

Snap - Charles beat me to it

stevenmcavoy
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if there is a hb claim does that not help here? if there is a hb claim can that be amended to be a couple claim, have two sdp’s which would then mean (i think) they came under the gateway barring a uc claim?

wbamic
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Sorry for bumping an old thread!

We have a case the same as this. 

Client on ESA with SDP as well as HB. 

Partner closes UC claim two weeks before moving in together.  Partner has PIP Enhanced rate Daily living

They report change of circumstance to ESA and HB.  All good.  ESA send out an ESA3 pre lockdown and this is filled in. 

Phone up on 3 occasions and each time told that the processing team won’t process the ESA 3 and that they will have to claim UC. 

I have asked 3 times for this decision in writing and not got anywhere.  Partnership manger contacted multiple times and no news. There is now a note telling call handlers to tell me that they have to claim UC. 

The partner with the closed UC claim keeps getting text messages telling them to log into there closed claim.  They have screenshot evidence the claim was closed.  My fear is the consequence of logging back into the closed claim?

wbamic
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I am here to vent ! Since my last post we have had an update.  The couple living together now have an open Universal Credit claim and an open ESA claim both paid with a single person applicable amount. 

What has happened is that when we have made complaints about ESA regarding failing to apply the change of circumstance (adding a partner) that some how the complaints team have some how got a message to Universal credit and reopened the closed Universal credit claim on the basis of “misadvised about other benefits’‘. 

To be clear this Universal Credit claim was closed before the couple had moved in together and they have certainly not requested that it to be reopened. 


i am at bit of a loss what to do now.  On ESA they will have double SDP.  I feel the DWP have totally over stepped the mark in opening a closed claim and i have not digested yet what the full implications of the DWP opening the Universal Credit claim will now have on the couples ability to claim ESA. 

Daphne
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Sounds like a nightmare! I’m responding in the hope that others will respond too because I don’t really know the answer!.

Out of curiousity how did the partner close his UC claim? A message on the journal? Did DWP reopen it within the same assessment period that it was closed? If it was clearly closed and there was an assessment period where nothing was paid I can’t see how they are legislatively allowed to reopen it. A claim has to made in line with reg8 of the claims and payment regs which it doesn’t appear to have been? So on that basis it isn’t a valid claim?

Is it worth getting the MP involved - there seems to have been some success with that on other threads.

Va1der
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I’d suggest you submit a SAR, or try to get some clarity of information and dates via the escalation line. I think you need some clarity on what has actually happened and on what basis DWP has made their decisions.

That should give you some options on how to proceed, or with a bit of luck, make DWP realise their error and correct it.

Daphne - 06 July 2020 02:33 PM

Out of curiousity how did the partner close his UC claim? A message on the journal? Did DWP reopen it within the same assessment period that it was closed? If it was clearly closed and there was an assessment period where nothing was paid I can’t see how they are legislatively allowed to reopen it. A claim has to made in line with reg8 of the claims and payment regs which it doesn’t appear to have been? So on that basis it isn’t a valid claim?

I’m still curious what it looks like in the UC IT system when a claimant has elected to request their claim to be closed.

I’d guess DWP has revised the decision to close the claim - maybe they treated client contacts as an MR, or did it on their own volition. Presumably, in that scenario, a SAR would reveal that the partner CiC hasn’t been registered, and the two are just registered as separate entities in the same property.
But unless anyone can see an obvious (and actionable) error, I’m just contributing fruitless speculation.

[ Edited: 6 Jul 2020 at 03:42 pm by Va1der ]
wbamic
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Thank you very much for getting back to me. 


With regards to the MP.  We contacted the MP about getting something in writing about why the DWP we refusing to put into place the change of circumstance.  It seem that what resulted directly of this was that the UC was put into payment.  I have been told verbally on the phone by the case manager that they reopened the UC claim as it was in the clients ‘best interest’ as because of there history of mental health they believe they closed the claim mistakenly thinking they would be able to go onto the soon to be partners ESA claim. 


It appears the MP and partner ship manager getting involved has what may have sparked UC into payment. 


The case manager maintains that ‘all changes of circumstance for income based benefits’ lead to UC. 

The client does not want to access their journal currently as they feel it would possibly legitimise the UC claim.  From what the case manger read out to me the client had asked to close the claim in a journal note in Feb.  Stating the reason for closing the claim as being that in March she would be moving in with a partner.  She closed the claim the day after a payment date. 


It would appear that when the claim was reopened it was backdated to the assessment period it was closed in.  It was 4 months between the claim being closed and being reopened. 


The case manager has apparently put a ‘to do’ on to report that she has a partner. 


Speaking to anyone at the DWP it seems to be going around in circles. Most worrying is that the client has stopped taking her antipsychotic medication as she is concerned about NHS prescription charges when her benefit status is up in the air.

[ Edited: 7 Jul 2020 at 09:52 am by wbamic ]

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Va1der
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You might be able to resolve it by going back to the MP - assume s/he wouldn’t be glad to hear that their efforts have been misinterpreted and be keen to correct it.

If DWP are using a claimants disability as an excuse to make decisions that are in DWP’s, rather than the claimants, favour I think they are moving into the territory of EHRC violations. You wouldn’t get anywhere with such a complaint - DWP could just claim ignorance etc, but threatening action might dislodge the current stalemate.

I don’t see how logging into the UC account would be an issue - but if your client refuses I’d still go for a subject access request.
There might be an appealable decision here, or scope for (threat of) judicial review if not, but you won’t get the grounds without info.

wbamic
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Hi Va1der, thank you for the good ideas. 

The MP has apparently written again at the weekend so will see what comes of that. 

With regards the ESA, once you have notified of a relevant change of circumstance (partner moving joining household) what if any rights do you have for the outcome of that notification to be given in writing?  Apparently there is a note on to say if I call again to tell me that the couple need to claim Universal Credit and this is not a decision that needs to be in writing!

Charles
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wbamic, you write above that the claim was closed the day after receiving a payment, and that this was a two weeks before they moved in together. If these timings are correct, you could have the problem which I mentioned earlier on the thread:

Charles - 12 December 2019 11:55 AM

What client has done (ending the UC claim prior to moving in) is also suggested in the CPAG article. However, after the change in guidance referred to here, that will only work if they close the claim before the end of the last complete AP before before moving in, which is unlikely to be the case. I think however that this change of guidance is extremely debatable, and you could attempt to argue against it at Tribunal.

wbamic
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Thanks Charles, I did pick up on that point and in some form understand the logic of the guidance.  I just wish that they would notify if this is the route they are going down.

wbamic
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Via an escalation route i have now had this response.

‘‘Couple of things though, people cannot move from UC back to legacy claims, a change of circumstances on a legacy benefit does mean a claim to UC should be made’‘. 


I have asked for clarification of what regulation would result in an ESA claimant with a change of circumstance being compelled to make a claim for UC.