HB or UC?

We have a client who applied for an SDP with her ESA claim in June 20. Due to investigations re her capital, this took a year to be awarded, a decision to award the SDP was finally made on 16.6.21 (backdating the SDP to June 20). In the meantime, our client had not been receiving any help towards rent. She did not want to claim UC so was hoping to be able to claim HB once the SDP was in place. However as the SDP gateway closed on 27.1.21, we advised her to make a claim to HB prior to this, pending award of the SDP. The client unfortunately did not apply for HB until 1.2.21, ie after the SDP gateway closure, but she did request a one month backdate, hoping that the claim could be considered from a date before then.
Due to the delay by ESA in awarding the SDP, our client did not chase up the HB claim with the council, and advises that she did not receive any decisions about this claim. They now state that they issued a decision dated 18.3.21 stating that she was not entitled (we have asked them to send her a copy of this) because she did not apply before the SDP gateway closed, and would now need to apply for UC. We emailed the council to ask that this decision is reconsidered on the grounds that she asked for a backdate to before the closure of the gateway, and has good cause for a backdate request due to her mental health issues. They have replied and stated this regarding the backdating -
‘‘As for the backdating – the legislation which applies to this case is The Welfare Reform Act 2012 (Commencement No.23 and Transitional and Transitory Provisions) Order 2015 and in particular Regulation 7(8), 7(9) and 7(10).  This regulation effectively prohibits backdating except where an earlier claim was made and was declared defective and the defect was rectified within one month (Reg 83(4E) of HB regs 2006), it is decided at a later date there was actually sufficient information provided to award the claim in the case of a decision to make it defective (Reg 83(4F) of HB regs 2006) or if the claim was made at a different ‘designated’ office (i.e. DWP office) at an earlier date or the form is received within one month of it being requested (intention to apply) (Reg 5(d) of HB regs 2006).
Unfortunately, she has not submitted a claim or registered her intention to apply before 01/02/2021 which is after 27/01/2021.  The normal backdating rules (1 calendar month) do not apply in this instance.’‘
I have read these regs but am struggling to determine whether they prohibit any backdate which would allow a HB claim date to be accepted as a date before the claim was actually received. Can anyone advise? I don’t want this client to lose out on housing costs for any longer if there is no scope for challenging this decision, as she has lost so much already. At this point she would be better off financially applying for UC, but she does not want to do this.

They are absolutely 100% correct I’m afraid.  That is exactly what Article 7 of the No 23 Order says.

In plain English, for SDP gateway purposes, the date of the HB claim is the date on which the claim was physically made, subject to the two exceptions the Council has referred to (following an earlier intention to claim, correcting an earlier defective claim).

I cannot see any way past that in this case, unless there was a previous award of HB which ended and you can find grounds on which to revise the decision ending that award - I am thinking in particular about the issue with capital which has now been resolved in her favour, did that lead to a previous HB award ending and could it still be appealed now?

Thanks for your reply. No, this client had not made an earlier claim, so will now have to look at UC I think!