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Financial loss caused by waiting for SDP MR - chose to remain on legacy benefits

Andrew Dutton
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Claimant with severe anxiety had Support Group ESA with SDP, HB also.

ESA removed in late 2019 for non-attendance at WCA, but decision overturned at MR as there was plenty of evidence of anxiety etc and the need for a home visit. Did not claim UC.

Straight after, Dec 19, PIP is removed on review – 0 points; MH evidence ‘overlooked’ again, shall we say.
MR commenced, but claimant loses SDP. 

Claimant, distressed, moves out of LA area, closer to family support – to new rented accommodation.

Advised by us she can claim UC to get rent help, and seek SDP transitional payment if PIP MR succeeds, or remain on ESA without access to HB, and that if PIP MR succeeds, HB backdate may not cover all losses.

Decides to remain on ESA.

PIP decision is overturned, 0 points magically become 11 points, standard DL awarded.

Claimant can get the SDP back in ESA and claim HB, but HB backdate will only cover one month, rent losses are for 6 months. 

It seems to me that the claimant’s loss was in effect caused by wrong decision making by DWP, can this be a basis for a claim for compensation?

DWP will doubtless argue that claimant had a choice (both in moving home and not claiming UC), but it seems to me it was one heck of a dud choice.

Thoughts?

Benefits38
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Was Housing Benefit applied for when the client moved properties?  If so a reconsideration can be asked for and the Housing Benefit can be backdated.

Andrew Dutton
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Ah…no. Tactical error?

Benefits38
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Unfortunately, yes.

Andrew Dutton
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I need to learn from this.

Is there a discussion thread covering how to claim HB in such a situation? I seem to recall there may be…

How does one persuade an HB dept to accept a claim that they will insist can’t be made?

Paul_Treloar_AgeUK
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Andrew Dutton - 10 June 2020 09:05 AM

I need to learn from this.

Is there a discussion thread covering how to claim HB in such a situation? I seem to recall there may be…

How does one persuade an HB dept to accept a claim that they will insist can’t be made?

You said your client didn’t actually claim UC though. Under reg.6 of the UC Transitional Regs, the LA could refuse him the ability to make a claim for HB but only if he’s being paid or has claimed UC - otherwise, they’ve got to accept the HB claim and you should send LBA if they refuse to take it, I think.

Andrew Dutton
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Paul_Treloar_AgeUK - 10 June 2020 09:23 AM
Andrew Dutton - 10 June 2020 09:05 AM

I need to learn from this.

Is there a discussion thread covering how to claim HB in such a situation? I seem to recall there may be…

How does one persuade an HB dept to accept a claim that they will insist can’t be made?

You said your client didn’t actually claim UC though. Under reg.6 of the UC Transitional Regs, the LA could refuse him the ability to make a claim for HB but only if he’s being paid or has claimed UC - otherwise, they’ve got to accept the HB claim and you should send LBA if they refuse to take it, I think.

I think we should be OK for a claim from now on, I’m fretting about what I should have done when the client first moved -  still on IRESA but in a new tenancy, no SDP, what would have persuaded the HB dept to accept a claim at that time and make a decision on it rather than them saying ‘No you can’t claim HB, it must be UC’?

 

Charles
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I’m not convinced a claim for HB would have helped. We know DWP’s position is that a backdated award of SDP does not mean the SDP gateway applies (see for example this post and attached FoI response).

It is arguable that this is incorrect, and there was also another thread recently where someone said a UC claim made in similar circumstances was closed down due to the SDP gateway.

Va1der
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I’ve never had to try this myself, but if I recall you would have had two options if you claimed with the new LA when the client moved (or at any point up until now):

1) Ask the council to stay making a decision on the claim, because there is an appeal pending, making an effective claim once the appeal succeeds and there is SDP in the ESA.

2) If the council refuses the claim - appeal.

Option 1 would be faster, but I don’t know if there is any provision to encourage the council to act in this way, other than having a reasonable relationship with them.
In either case you’d have to retain the tenancy in arrears at least until SDP in ESA is reinstated.

Or, if are you asking what to do if the council refuses to even acknowledge the claim, I suppose Judicial Review is one possible route.
EDIT: Although, given the unclear area I’m not sure how effective that could be.

[ Edited: 10 Jun 2020 at 09:51 am by Va1der ]
Paul_Treloar_AgeUK
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Andrew Dutton - 10 June 2020 09:34 AM

I think we should be OK for a claim from now on, I’m fretting about what I should have done when the client first moved -  still on IRESA but in a new tenancy, no SDP, what would have persuaded the HB dept to accept a claim at that time and make a decision on it rather than them saying ‘No you can’t claim HB, it must be UC’?

In that case, they have to accept a claim and can make a nil entitlement decision if they think that’s what the claim merits which you can then appeal. The Reg 6 provision is important because that does actually preclude the possibility of actually making the HB claim in the first place - if none of the circumstances in that reg bite, then your client can always make a claim. I still can’t get over there being legislation that prevents someone making a claim, I don’t remember ever coming across legislation to that effect before.

Paul_Treloar_AgeUK
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Charles - 10 June 2020 09:44 AM

I’m not convinced a claim for HB would have helped. We know DWP’s position is that a backdated award of SDP does not mean the SDP gateway applies (see for example this post and attached FoI response).

It is arguable that this is incorrect, and there was also another thread recently where someone said a UC claim made in similar circumstances was closed down due to the SDP gateway.

Sorry to take this slightly off course but in that case, are you of the opinion that what I posted here regards the HB award wouldn’t be possible either Charles?

MAC and SDP

Or is it the anytime revision that distinguishes from DWP FOI? This is all such a complete shambles and it’s severely disabled people (by definition) paying the price for incoherent government policy.

Charles
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Paul_Treloar_AgeUK - 10 June 2020 10:38 AM

Sorry to take this slightly off course but in that case, are you of the opinion that what I posted here regards the HB award wouldn’t be possible either Charles?

MAC and SDP

Or is it the anytime revision that distinguishes from DWP FOI? This is all such a complete shambles and it’s severely disabled people (by definition) paying the price for incoherent government policy.

The FOI request does also mention “mandatory reconsideration”:

Please note, customers who become entitled to SDP following a mandatory reconsideration (MR) or an Appeal, will not be included in this exercise. This exercise ONLY covers customers who had SDP entitlement when they made their claim to UC.

Although this appears to be DWP’s position, I don’t know if it’s correct. I know Peter for example is of the opinion that it probably isn’t.
The Explanatory Memorandum with the Regs suggested that all breaches of the SDP gateway would not be returned to legacy benefits, but would simply get the SDP compensation payments (see paragraph 7.51). The new policy discussed in the FOI shows that they’ve changed their minds at least for accidental breaches of the gateway. Maybe they’re wrong about revision/appeal cases too.

[ Edited: 10 Jun 2020 at 10:33 pm by Charles ]
Paul_Treloar_AgeUK
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Charles - 10 June 2020 10:30 PM

The FOI request does also mention “mandatory reconsideration”:

Please note, customers who become entitled to SDP following a mandatory reconsideration (MR) or an Appeal, will not be included in this exercise. This exercise ONLY covers customers who had SDP entitlement when they made their claim to UC.

Although this appears to be DWP’s position, I don’t know if it’s correct. I know Peter for example is of the opinion that it probably isn’t.
The Explanatory Memorandum with the Regs suggested that all breaches of the SDP gateway would not be returned to legacy benefits, but would simply get the SDP compensation payments (see paragraph 7.51). The new policy discussed in the FOI shows that they’ve changed their minds at least for accidental breaches of the gateway. Maybe they’re wrong about revision/appeal cases too.

Thanks Charles. That’s the problem though - Housing Benefit doesn’t have the mandatory reconsideration requirement at all. As such, the any time revision of the HB decision is eminently possible and as such, the SDP gateway regulations can be read that the UC claim was taken in error and therefore the HB award should be reinstated in full. How or if you could revive the ESA awaed is beyond me for now.

Charles
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I don’t think there’s any difference whether the revision was carried out as an MR or an any time revision - either way the argument will be the same: as an SDP wasn’t in place at the time, a UC claim could be made, and therefore a new HB claim could not be made - Art. 7(1) of the No 23 Order.

And in the other thread, the HB ends as a UC claim could have been made at the point he reached pension age.

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Charles - 11 June 2020 11:09 AM

I don’t think there’s any difference whether the revision was carried out as an MR or an any time revision - either way the argument will be the same: as an SDP wasn’t in place at the time, a UC claim could be made, and therefore a new HB claim could not be made - Art. 7(1) of the No 23 Order.

And in the other thread, the HB ends as a UC claim could have been made at the point he reached pension age.

Sorry to push the point but it’s not a new HB claim, it’s a revision of a previous HB award and the D&A reg is specifically about this situation i.e. a qualifying benefit is awarded that brings about an entitlement to a claim that had previously been closed.

(7) A relevant decision made in respect of a claim or an award may be revised where—

(a)a decision in respect of that claim or that award is given by [F7the First-tier Tribunal, Upper Tribunal] or court on appeal against a decision (“decision A”);
(b)the relevant decision was made after decision A; and
(c)the relevant decision would have been made differently had the relevant authority been aware of that appeal decision at the time it made the relevant decision.

It’s revising the decision to close an existing award, not making a new HB claim,

Charles
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In this thread it is a new claim. as it’s a different LA.

In the other thread, it would be a continuation, but what are the grounds for revising? If you accept DWP’s argument that a UC claim was allowable at the time, then Art. 8 of the No 31 Commencement Order doesn’t apply as there was nothing preventing a UC claim at the time.