Transitional SDP element and carer’s element/underlying CA entitlement

Hello

I’m hoping to clarify what the situation would be for a couple I’m advising at present with regards to the transitional SDP element (which I’ll hereafter refer to as TSDPE). Both of them currently receive CBESA (including the support comp) and PIP daily living,  They have a joint claim for IRESA which includes 2 x SDPs and 2 x carer’s elements (they get the SDPs because the CA entitlement is an underlying one, because CBESA is payable instead of CA).

If they were to make a joint claim for UC, would they get the TSDPE at the higher (£405) rate, because they get two SDPs at present? The obvious answer would be ‘yes’, because they have 2 x SDPs currently in place, but there is one thing that concerns me. At CPAG page 28, it says that in order to get a TSDPE, you must continue to ‘satisfy the conditions for getting the severe disability premium up to and including the first day of your UC entitlement’. The ‘up to’ bit isn’t the issue, it’s the ‘including’ bit that concerns me.

On the date of the UC claim, by virtue of the fact that both members of the couple have an underlying entitlement to CA, they would have a carer element included on the award of UC. As we know, a person claiming a UC carer’s element prevents the recipient of that care from having entitlement to the SDP (CPAG p337). And one of the conditions of qualifying for the TSDPE is that you satisfy the conditions for getting the SDP up to and INCLUDING the first day of your UC entitlement (sorry about the capitals, I’ve not worked out italics or bold lettering on this forum!).

So in this scenario, would the inclusion of a UC carer’s element preclude entitlement to the higher rate of the TSDPE? And would it therefore be beneficial for neither of my clients to have the underlying entitlement to CA on the date of their move to UC?

I’m sorry if this hasn’t been well explained, or has been addressed before. I’ve had a look at schedule 2 of the UC(TP) regs and my reading of it is that they wouldn’t get the higher TSDPE if they had the underlying entitlement to CA at the date of UC claim, because this would result in a carer’s element being included in the calculation.

Many thanks for any opinions.

Alex

Even if the inclusion of the carer element on the first day of the claim would impact the SDP transitional element (I await with interest the comments of our more erudite colleagues on that) the situation would be that when they claim one of them would get the LCWRA element and one of them would get the carer element. They would, therefore, at worst, still satisfy the condition to get the TSDPE at the lower rate.

Apologies, having reread your post I think that what I have posted is implicit within your original post.

Even if the Carer Element was included, I still read the Regs as saying that the higher TSDPE should be included - see the wording used in Para 5(b)(i) of the Schedule. DWP may not agree though!

See also this thread:

https://www.rightsnet.org.uk/forums/viewthr/viewthread/17237/

Para 5(b)(I) and para 3(b) are worded differently.
My reading is that para 3 determines whether the element is to be included and then para 5 determines the amount.
Para 3(b) says that the claimant must still satisfy the conditions for a SDP on the first day of claim., from which I follow Charles’s argument. However what is unclear to me is that para 3 refers to claimant (singular) whereas there are two claimants - only one of whom continues to satisfy the conditions for SDP if the other gets the carer element and the consequences of that are not set out which therefore introduces ambiguity.

I agree that para. 3 will only apply to one of the joint claimants. However, that para. does not discuss the rate of the TSDPE, only para. 5 does.

Para. 5 is wholly retrospective looking, and refers to the rate which was payable, which was unarguably the higher SDP rate.

I therefore think on a literal reading of the regs, and in the absence of any other provision limiting para. 5(b)(i), the higher rate TSDPE must be included.

As I mentioned, this is based on a literal reading and I don’t know if DWP would agree.

Why do they need to change to UC?

Thanks to all for their responses. I’ll let you know how this one goes, depending on what the client decides to do.

They need to change to UC because they are moving to a different borough and need to claim for help with housing costs.

Many thanks

Alex

Hiya
I’m re-posting on this thread as it’s the same circumstances:

Couple clients, both on ESA-C with SC and both with an underlying entitlement to CA (not in payment due to overlapping benefit rules with ESA-C), topped up by ESAir which includes a double carers premium and double SDP. They then naturally migrate to UC in October 2022 and from the start their UC claim includes 1 x LCWRA and 1 x carer element; and to start with it includes the £120 rate of SDP transitional element is included. Then 6 months in, UC remove the £120 (removed from April 2023), at which point they seek advice from us.

The discussion in this thread indicates that UC including the SDP TE was correct, so we may be challenging its removal. But I note the discussion in this thread (https://www.rightsnet.org.uk/forums/viewthread/17237/) and the new Regs coming into force from 29/06/23 -

‘(6) In Schedule 2 (claimants previously entitled to a severe disability premium)—
(a)in paragraph 5(b)(i), for “if the higher SDP rate was payable” substitute “if the higher SDP rate is payable on the first day of the award and no person becomes a carer for either of them in the first assessment period”;
(b)renumber paragraph 8 as paragraph 8(1) and at the end insert—
“(2) In paragraph 5(b)(i), the reference to a person being a carer for another person is to the person being entitled to, and in receipt of, a carer’s allowance or having an award of universal credit which includes the carer element in respect of caring for that other person.” ‘

I am curious if the clients would no longer be entitled to the SDP TE after 29/06, or whether in fact they cannot be said to have ‘become’ carer for each other in the 1st AP because they already had long-standing claims for CA?