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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

IRESA SDP recipient and sofa surfing friend!

unhindered by talent
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Client on IRESA with SDP has allowed a friend to use her address for mail and sofa surf 3 nights a week following the break-up of his marriage. Is she jeopardising her SDP?

Dan Manville
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unhindered by talent - 14 January 2020 02:18 PM

Client on IRESA with SDP has allowed a friend to use her address for mail and sofa surf 3 nights a week following the break-up of his marriage. Is she jeopardising her SDP?

She shouldn’t be. To jeoparise the SDP the non dep needs to be normally resident with the claimant.

I regularly get SDPs for sofa surfers or their sofas.

unhindered by talent
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Thanks - would 4 nights count as normally resident or is it on the facts of the case?

Va1der
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Dan Manville - 14 January 2020 02:31 PM
unhindered by talent - 14 January 2020 02:18 PM

Client on IRESA with SDP has allowed a friend to use her address for mail and sofa surf 3 nights a week following the break-up of his marriage. Is she jeopardising her SDP?

She shouldn’t be. To jeoparise the SDP the non dep needs to be normally resident with the claimant.

I regularly get SDPs for sofa surfers or their sofas.

Where can I find the definition of ‘(ed: normally) resident’ used here?

EDIT: The legislation that is (or caselaw?), I know the DMG.

As far as I know Dan is correct. She ‘shouldn’t’ be. However, be wary of any bit of information DWP picks up on that makes them think he resides there normally. If he starts getting his mail there, for instance.

[ Edited: 14 Jan 2020 at 03:08 pm by Va1der ]
unhindered by talent
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As I indicated above, he has had his mail re-directed there

Va1der
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What is the status of his married residence, and is he getting legally separated or just ‘moved out for a bit etc.’?

Paul_Treloar_AgeUK
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Sch.4 of ESA Regs 2008

Severe disability premium
6.—(1) The condition is that the claimant is a severely disabled person.

(2) For the purposes of sub-paragraph (1), a claimant is to be treated as being a severely disabled person if, and only if—

(a)in the case of a single claimant, a lone parent or a claimant who is treated as having no partner in consequence of sub-paragraph (3)—

(ii)subject to sub-paragraph (4), the claimant has no non-dependants aged 18 or over normally residing with the claimant or with whom the claimant is normally residing;

Reg.2 defines “non-dependant” has the meaning prescribed in regulation 71; and reg.71 states:

Definition of non-dependant
71.—(1) In these Regulations, “non-dependant” means any person, except someone to whom paragraph (2), (3) or (4) applies, who normally resides with a claimant or with whom a claimant normally resides.

As such, the question is, does the sofa surfer “normally reside”“ with the client - as a sofa surfer is at this stage dealing with a relationship breakdown, it is strongly arguable that is not the case. It’s also advisable for the client to consider notifying the DWP about the arrangement and making this point - with the data matching powers they have now, and with the sofa surfer having their mail redirected, it’s very likely that DWP will find out about the situation in due course anyway.

unhindered by talent
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He left his wife at the end of November and Council Tax Section became aware of it and questioned her. She advised that he was hoping for a reconciliation with his wife but had had to accept that it was not going to happen and so had to make arrangements for mail etc.

Ros
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In terms of caselaw, think CH/4004/2004 could help if there was an issue - found that destitute cousin staying temporarily with claimant and sleeping on sofa was not ‘normally residing’ with the claimant -

CH/4004/2004

here’s the rightsnet summary -

Non-dependant deduction - ‘normally resides with’ / retrospective effect of award of DLA

unhindered by talent
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Many thanks for the advice, folks

Va1der
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Thanks Ros.

So essentially, the surfer could stay there 7 days a week, and still not be counted as normally resident.

However, in the absence of any relevant evidence/indication, it may come down to a lucky pick of DM how this swings.

Presumably, the reality is somewhere between perfect innocence and the client being the very reason the marriage ended, and DWP seem to frequently be negatively minded. The longer he stays, the more risk there is to the client’s SDP (duration is obviously relevant to establish normality).
Where does he stay the remainder 3 days? Is he actively looking for a new flat etc? Is he planning to go surfing somewhere else?

Could consider cohabitation regs, but even if there hasn’t been a legal separation, it doesn’t sound like there’s an argument that he is only temporarily absent from his wife. I don’t know if they would be relevant in any case, thinking of SI 1977/956, reg. 2

unhindered by talent
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Yes, I suspect that the issue was not simply one of living alone but also whether they were LTAMC . The chap is looking at a few options and I have signposted him to homelessness services within the council.

Peter Turville
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Ros - 14 January 2020 03:23 PM

In terms of caselaw, think CH/4004/2004 could help if there was an issue - found that destitute cousin staying temporarily with claimant and sleeping on sofa was not ‘normally residing’ with the claimant -

CH/4004/2004

here’s the rightsnet summary -

Non-dependant deduction - ‘normally resides with’ / retrospective effect of award of DLA

on the meaning of ‘normally resides’ see also:
AM v SSWP (IS) [2001] UKUT 387 - reported as [2010] AACR 23
JP v Bournemouth (HB) [2018] UKUT 75

In AM para 14:

…. a person may have “no fixed abode” and therefore no residence at all. It is a question of fact whether the quality of a person’s stay in a particular dwelling constitutes it as a home for the person concerned: or alternatively is only a place where that person transiently or temporarily lives.

Won a case on the issue (whether claimant’s adult offspring was ‘normally resident’ for HB non-dependent deduction) last week!

Mike Hughes
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I’ve certainly had a 5 day sofa surfer and not had an issue. Post was redirected etc.