‘Normally lives with…’ for SDP purposes
Cl’s partner went abroad late last year to act as a carer for a relative on a temporary basis.. Prior to this they were getting CA for looking after my cl. but this stopped after the partner had been outside the UK for about four weeks.
To cut a long story short the cl has been refused the SDP on their ESA (and no transitional SDP on a subsequent UC claim) as DWP hold that they didn’t actually live alone.
This seems to hang on the definition of ‘normally lives with’ in the ESA regs. The couple are not intending that this is a permanent separation and do not expect it to exceed 52 weeks as per the ESA regs. In practice my cl met all the conditions for the SDP in that they lived alone, no one was paid CA and they got the requisite PIPS award but DWP seem to be maintaining the (slightly absurd?) view that the cl does not live alone despite the fact that the partner is well over a thousand miles away in southern Europe.
Is there a definition of ‘normally lives with..’ or any case law to back up the proposition that the cl. lives alone (albeit temporarily) for SDP purposes?
Found this one - CE/2956/2012 - although is about claimant being away, the ‘normal residence’ findings are helpful for your client I think -
As per our summary -
The judge found that the tribunal did not address the relevant test for severe disability premium as set out in paragraph 6(2)(a) of Schedule 4 to the Employment and Support Allowance Regulations 2008, namely that ‘the claimant has no non-dependants aged 18 or over normally residing with the claimant or with whom the claimant is normally residing’. The tribunal should have asked where the claimant normally resided not what was his permanent residence.
The judge added that –
‘The question of normal residence is a practical one to be determined in the light of common sense (CIS/14850/1996). Of course, if the absence from the permanent home is a short one, for example, because the claimant is on holiday or is undergoing treatment away from home for say a month, as a matter of common sense he still would reside at his permanent residence. But if he has to go for 9 months to another place and live there, then as a matter of common sense he is not residing during that period at his permanent address. Nor is he residing there because, for convenience, it is used as a postal address for benefit claims being pursued on his behalf by his mother.’ (paragraph 8)
Here’s also CIS/14850/1996 -
Were they claiming as a single person or a couple while she was away?
They had to make a UC claim to get Housing Costs after moving to a new area. The partner was abroad when the move happened and as far as I know has not yet claimed UC.
Prior to this it was a joint ESA claim