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Forum Home  →  Discussion  →  Universal credit migration  →  Thread

Loss of SDP following end of gateway.

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HarlowAC
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Hi All

Can I just confirm, will claimants losing SDP after 27/1/2021 receive a transitional element?

Ianb
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HarlowAC - 09 December 2020 04:15 PM

Hi All

Can I just confirm, will claimants losing SDP after 27/1/2021 receive a transitional element?

If they are transferring to UC but still meet the SDP eligibility criteria then they get the SDP transition element.

Vaux
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I’m not so sure that transitional protection would be possible, unless DWP amend the regulations. The rationale behind the gateway ending was that managed migration would be fully rolled out so TP would follow from that migration. However, anyone moving from ESA to UC after Jan 27th are doing so under natural migration and the special concession of access to a TP will fall (although I may be wrong)

However, there has been an indication from the DWP that a new TP system may be introduced just for these naturally migrated cases where sdp is in payment.

HarlowAC
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Thanks so both.
I am struggling to find anything definitive on this but I may be missing the blindingly obvious. There appears to be a possibility of some provision but I’ve not seen anything concrete.
Currently advising a Client whose circs may change pre or post 27/1/21, so a bit stumped.

Ianb
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I read schedule 2 of The Universal Credit (Transitional Provisions) Regulations 2014 (introduced by the The Universal Credit (Managed Migration Pilot and Miscellaneous Amendments) Regulations 2019) as being applicable..

However I can see that it appears to only be referenced by regulation 63 which is in the part of the regulations dealing with managed migration.

If this schedule does not apply to natural migration then that would appear to leave those naturally migrating without protection.

However, despite its location in the regulations, regulation 63 itself does not refer to ‘qualifying claims’ or ‘notified claimants’ so could possibly be interpreted more broadly to include all claimants how so ever migrating.

[ Edited: 9 Dec 2020 at 10:47 pm by Ianb ]
Charles
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The reason the SDP gateway is being removed is not because “managed migration would be fully rolled out” as stated above. It was a direct result of a High Court judgement which found that the different treatment for those SDP recipients who claimed UC before the gateway was put in place, and those who were able to stay on legacy benefits after the gateway was put in place, is unlawful.

The intention was always that the transitional SDP payments would be made to those naturally migrating after the removal of the gateway in January 2021, and the legislation certainly backs this up. The ONLY change being made in January is the removal of Reg 4A of the Transitional Provisions Regs - see here, along with the commencement date here.

The Explanatory Memorandum also confirms this:

Once the Gateway is removed claimants will move to UC if they have a relevant change of circumstances and may be eligible to be considered for transitional payments.

Schedule 2 of the Transitional Provisions Regs was ONLY intended for those who migrate naturally, and in fact is the legislation underpinning the thousands of transitional SDP payments made to date - none of which were for claimants managed migrated! This is not being revoked in January.

I agree it is slightly confusing that Reg 63 was included in the managed migration part of the regs. The Explanatory Memorandum explains the reason for this as follows:

The provisions for transitional payments to former SDP recipients who have moved to UC following a relevant change of circumstances are included with in these regulations. This is because they will be converted into a Transitional Element and therefore form part of the wider transitional protection framework.

[ Edited: 10 Dec 2020 at 12:08 am by Charles ]
Elliot Kent
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Ianb - 09 December 2020 05:29 PM

If they are transferring to UC but still meet the SDP eligibility criteria then they get the SDP transition element.

This.

The MM Regs introduced two measures relevant to the SDP.

(1) The ‘SDP gateway’ which excludes people from claiming UC up to 27/01/21. See reg 4A UC (TP) Regs.
(2) The “transitional SDP amount” paid to people who wind up on UC having previously been on the SDP. See Sch 2, UC (TP) Regs.

The SDP gateway ends on 27/01/21, but the transitional SDP amount doesn’t. So it will be possible for SDP claimants to ‘naturally migrate’ to UC post 27/01/21, but they will still be entitled to the transitional SDP amount.

This is not the same thing as the official ‘transitional protection’ which is only available under managed migration, so it will be based on the same fixed amounts as used for people who claimed UC prior to the gateway rather than any direct comparison of pre and post UC benefit. (Although it will be eroded in the same way).

See further: https://askcpag.org.uk/content/200527/uc-and-natural-migration-now

Edit: snap.

Not the first time that I have ended up posting the same thing at the same time as someone else but it usually doesn’t happen after midnight.

[ Edited: 10 Dec 2020 at 12:14 am by Elliot Kent ]
Ianb
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Thank you, Charles and Elliott. Glad to have that confirmed (and explained more fully than I could manage).

[ Edited: 10 Dec 2020 at 07:15 am by Ianb ]
Daphne
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One thing that concerns me is that those who only have a SDP in their HB are protected by the SDP gateway but don’t qualify for the transitional protection under Schedule 2. I realise the losses might not be as much but they would be protected under managed migration.

 

Ianb
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Daphne - 10 December 2020 02:29 PM

One thing that concerns me is that those who only have a SDP in their HB are protected by the SDP gateway but don’t qualify for the transitional protection under Schedule 2. I realise the losses might not be as much but they would be protected under managed migration.

And the amounts are (I think) fixed at the original level so although the value of the SDP goes up in April (albeit by a pittance) the value of the SDP transitional element is unchanged.

Daphne
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Neil Couling has sent a letter to the Disability Benefits Consortium to confirm that -

Following the removal of the SDP Gateway, when people make a claim to UC DWP will check to see if they were receiving the SDP in their previous legacy benefit award and, where the claimant would still satisfy the qualifying conditions for SDP, they will automatically be considered for a SDP transitional payment…

Since 8 October 2020, we have converted existing SDP transitional payments to a UC transitional element. This means that payments will be made through the UC system rather than manually and be subject to the same rules as other transitional payments.

When the SDP transitional payment is converted to a transitional element, the transitional element will be subject to erosion and cessation in the same way as transitional protection for those people who are moved to UC under managed
migration. This will ensure that these claimants have the same rules applied to them as new claimants who move to UC with SDP after the Gateway is removed.

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JP 007
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We will continue witnessing the disintegration of the UC system and regulations, which will roll on over the years to come. This will be a fitting demise for a delusional Ian Duncan-Smith’s attempt at welfare reform but will continue to make our lives challenging. Maintaining the £20 addition next round!

bristol_1
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Hi Daphne, re: your post at #8
So someone who has the SDP only in their HB prior to 27/01/21, then later makes a claim to UC, would not qualify for the transitional addition (aka SDP compensation)? Neil Couling’s letter only refers to legacy benefits and doesn’t distinguish between HB/ESA.

I’m trying to get my client’s PIP reinstated before 27/01/21 - I think PIP will definitely be reinstated continuously as it’s a late return of a PIP2 with good cause. She is only on HB and private pension at the moment, if PIP and therefore SDP is reinstated after the gateway ends and she claims UC after 27/01/21, will she definitely not be able to get the transitional addition in UC?

If the answer is no, and we’re still waiting for PIP to be reinstated by 27/1/21, I’m wondering whether as a tactic she could apply for NS-ESA before 27/1/21 and then ask for the decision to be revised to ESAir once PIP is reinstated. Would a claim for NS ESA have this potential?

 

Daphne
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That’s my understanding - schedule 2 of UC(TP) regs only provides for transitional payment where SDP is in IS, JSA or ESA. So if she only has SDP in HB she won’t qualify for TP - I think Mr Couling did not make that clear - he probably doesn’t know the details!

If it’s a reinstatement of PIP was she previously on irESA? Might you be able to get the decision to stop that revised if PIP is made continuous?

If she claims ns ESA - I’m not sure that a claim for ns ESA could be treated as a claim for irESA?? Can’t see how that would work? But happy to be corrected…

bristol_1
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Unfortunately her ESAir stopped 3 years ago as just overscale due to pension, and then she later claimed PIP but never reclaimed ESAir as never had advice to do so.

My other thought was, I could assist her to make a written claim to ESAir by letter before 27/1/21 while she’s still waiting for PIP to be reinstated, this will be marked as defective but she has one month to correct that by making the claim correctly over the phone, in which time her PIP might have been reinstated…....

Peter Turville
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Daphne - 16 December 2020 02:09 PM

That’s my understanding - schedule 2 of UC(TP) regs only provides for transitional payment where SDP is in IS, JSA or ESA. So if she only has SDP in HB she won’t qualify for TP - I think Mr Couling did not make that clear - he probably doesn’t know the details!.

Perhaps its Neil’s Xmas cracker riddle - “when is a legacy benefit not a legacy benefit”? Or, when are we trying to make it look as if no one is losing out when in fact they are? Further legal action on the cards?