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

Missing SDP on conversion

unhindered by talent
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Client was receiving Severe Disablement Allowance, Income Support and Disability Living Allowance from around 2000 until 2013. He was then migrated over to ESA in December 2013 and his Income Support stopped.

Social worker assisted to claim SDP last year and an SDP backdate was awarded from 20/12/2013 which is when he migrated over to ESA.

The question is - if IRESA was paid on conversion but minus SDP (assuming he met the criteria on conversion), does that count as an official error which would enable him to hang onto his backdated SDP capital longer than 1 year (as per the LEAP exercise)? Or would the fact that his IS converted to IRESA (albeit without SDP) exclude him from that protection?

JACNCC
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http://www.legislation.gov.uk/ukpga/1998/14/section/27/enacted

” Will payments of arrears be disregarded for the life of the award?

Arrears of benefit under £5,000 are disregarded as capital for 52 weeks from the date they are paid.

Payments of £5,000 or more are disregarded for 52 weeks or until the termination of the benefit award, whichever is longer.

We have also introduced the same capital disregard in UC in respect of arrears relating to legacy income-related benefit entitlement which begins before migration to UC is complete”

unhindered by talent
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Thank you. So do you think the missing SDP is an error of law if the rest of the IRESA was included on conversion? If it’s not official error, and is merely a late payment of benefit, it must be counted after 12 months regardless of amount, as far as I can see

[ Edited: 24 Jun 2020 at 02:53 pm by unhindered by talent ]
Elliot Kent
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I don’t know why you have decided that this case isn’t official error. Obviously we have established authority in Smith v SSWP that the failure to award irESA at all is official error, but that isn’t to the exclusion of other scenarios.

In your case, you seem to be saying that the SDP wasn’t paid as a result of an inexplicable failure to include it in the award despite an entitlement existing. Isn’t that just an even clearer case of official error than Smith?

unhindered by talent
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I haven’t decided it’s not official error - i’m asking because I don’t know either way! To clarify - if client was sent an IS10 at the time and failed to return it, thus resulting in no SDP, it might be arguable that that isn’t an official error. DWP is saying his capital isn’t disregarded for more than 12 months

[ Edited: 24 Jun 2020 at 03:37 pm by unhindered by talent ]
Elliot Kent
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[crossed posts]

[ Edited: 24 Jun 2020 at 04:24 pm by Elliot Kent ]
unhindered by talent
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Thanks - i’ve added clarification im my last post that there could be a reason why they didn’t include SDP ie. failure to return IS10 as opposed to simply making an error in calculation based on all the facts. I know i’m probably infuriating you but I tend to want to cover all avenues

[ Edited: 24 Jun 2020 at 03:45 pm by unhindered by talent ]
Elliot Kent
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If the failure is inexplicable, then its obviously official error.

In the failure to return the IS10 scenario, that wouldn’t be official error - but if DWP wanted to argue that it was’t official error, surely they wouldn’t have backdated to the start of the claim?

I’m a bit snappy just because I’m doing multiple things at once sorry.

JACNCC
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Unhindered talent

In your client’s scenario, I am trying to think of a reason, as to why they would have been expected to have completed an IS10 at the point of transfer from SDA and IS?

My understanding is that the calculation upon transfer should have merely mirrored their entitlement from the legacy benefit.

Obviously, now that so many years have passed, I can see why they would want an IS10 completed, but I think that there would be a case that the error began at the start.

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Elliot Kent - 24 June 2020 03:49 PM

If the failure is inexplicable, then its obviously official error.

In the failure to return the IS10 scenario, that wouldn’t be official error - but if DWP wanted to argue that it was’t official error, surely they wouldn’t have backdated to the start of the claim?

I’m a bit snappy just because I’m doing multiple things at once sorry.

It’s OK, I drive myself nuts overthinking, let alone anyone else.

If he failed to return the IS10 (and this is pure speculation on my part), they could argue it’s not their error but have backdated it as he was entitled.

JACNCC - 24 June 2020 03:50 PM

Unhindered talent

In your client’s scenario, I am trying to think of a reason, as to why they would have been expected to have completed an IS10 at the point of transfer from SDA and IS?

My understanding is that the calculation upon transfer should have merely mirrored their entitlement from the legacy benefit.

Obviously, now that so many years have passed, I can see why they would want an IS10 completed, but I think that there would be a case that the error began at the start.

Incidentally, I don’t believe for one second he wasn’t entitled to SDP the day before conversion and suddenly became entitled on the day of conversion but that’s another issue entirely.

Thanks for your help.

[ Edited: 24 Jun 2020 at 03:58 pm by unhindered by talent ]