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Forum Home  →  Discussion  →  Universal credit migration  →  Thread

Difference between 2019 transitional SDP element and the 2021 regulations

Graham Summers
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Welfare rights officer - Welfare Rights Service, Leicester City Council

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Does anyone know why the 2019 regulations which provided transitional SDP payments UC claimants include a paragraph which seems to mean that at the date the SoS determines entitled to TSDPE no one has claimed Carers Allowance. This rule is not included in the 2021 regulations.

Does anyone know any reasons for Schedule 2 1(e) of the The Universal Credit (Managed Migration Pilot and Miscellaneous Amendments) Regulations 2019 and why this requirement is not included in the 2021 regulations.

I have an appeal where the claimant moved from ESA to SDP in 2019 and comes under the 2019 regs. She was entitled to the SDP prior to her move. Just over year after she moved onto UC her mother claimed Carers Allowance and the DWP looked into the TSDPE in 2021. It seems very arbitrary as if the DWP had looked at TSDPE before the CA claim was made then my client would have been entitled to these transitional element.

This case is awaiting an appeal and the main argument is that the 2019 regulations do not prevent the discrimination they were supposed to prevent. Furthermore the 2021 regulations which are supposed to prevent this same discrimination do not include the requirements contained in Schedule 2 1(e) of the 2019 regulations.

I am asking the tribunal to disapply Schedule 2 1(e) or to read them in such a way that avoids the discrimination identified by the Courts i.e. no one has claimed Carers Allowance etc. at the date of the Universal Credit claim.

Charles
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The 2019 Regs were made at a time when it was (supposed to be) impossible to claim UC if you had been entitled to the SDP in a legacy benefit. The Regs were therefore made to compensate those who had moved over prior to the SDP gateway being put in place, and by definition was backward-looking. DWP decided, for simplicity, to only provide compensation to those who would have still been entitled to an SDP at the point the SoS’s determination was made.

In 2021 the SDP gateway was removed, and the TSDPE was therefore changed to an automatic entitlement from the start of the UC claim for anyone who would have still been entitled to an SDP at the start of the UC claim. It was therefore unnecessary to include any provision equivalent to Para 1(c)-(e) of the original Schedule.

Graham Summers
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Welfare rights officer - Welfare Rights Service, Leicester City Council

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Thanks Charles,

Do you think it would be possible to challenge the 2019 regulations as they do not fully compensate people who lost their SDP entitlement such as my client who was entitled to the SDP on transfer from ESA to UC but was not entitled to TSDPE because by the time they looked into TSDPE entitlement her mother had claimed Carers Allowance. This was over a year after she moved onto UC.

In the various court cases which found the lack of transitional protection in natural migrations cases to be discriminatory there was no mention of claims for Carers Allowance subsequently being made.

If the 2019 regulations can be challenged as they do not compensate some SDP claimants can a First-tier Tribunal either disapply parts of them or interpret them in such a way to ensure a TSDPE is paid?

Charles
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It’s certainly unfair, and should be challenged.

What the best way of doing that is, I’m not so sure - perhaps speak to CPAG about it?

ElaineH
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Welfare Benefits Caseworker, Karbon Homes

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Just jumping on the bandwaggon -  does anyone know if the TSDPE from 2019 time, would have been paid as a separate payment outside of UC? I have a client who says her’s was until about a year ago. Many thanks
Elaine

Rosie W
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ElaineH - 16 June 2022 04:51 PM

Just jumping on the bandwaggon -  does anyone know if the TSDPE from 2019 time, would have been paid as a separate payment outside of UC? I have a client who says her’s was until about a year ago. Many thanks
Elaine

Hi Elaine! Our first ever UC client was paid separately - still by UC but not with his normal monthly payment.

ElaineH
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Wonderful thank you for clearing that up : )

AlexJ
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Trafford Welfare Rights

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Just to also jump on this bandwagon

I have a similar case. My client claimed UC on 9th January 2019 after being in receipt of the SDP, but it only came to the SoS’s attention in 2021, by which point he no longer claimed UC as a single person, as he had formed a couple (he was a single UC claimant from January 2019 to January 2020).

So rather than the carer’s allowance being the issue, it was the fact that the claimant stopped claiming UC as a single person and had become a member of a couple. So it’s paragraph 1(c) that’s the issue in our case, rather than 1(e), but the principle is the same: the regulations do not always remedy the discrimination they were set out to prevent.

Did you have any progress on how to potentially argue this Graham? I have drafted a submission for my client and would also be keen to see if you have - it might result in a useful exchange of ideas and ways of approaching the issue.

*Edited for clarity*

[ Edited: 4 Jul 2022 at 09:24 am by AlexJ ]
Ryan Bradshaw
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Leigh Day, Manchester

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Please keep this thread updated with the outcome of any appeals as this is likely to have relevance to the group action.

I think any challenge may have legs. I’d be happy to discuss tactics privately.

Graham Summers
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My case is waiting for a new hearing date. DWP were asked to send in a supplementary submission which they did but they did not accept that the 2019 regulations were discriminatory. I will update once I receive the FtT decision.

Ryan Bradshaw
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Leigh Day, Manchester

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Good on ya Graham

Not surprised at the response. When I sent a pre-action letter post TP & AR their reply indicated the Court had never held they were acting in a discriminatory manner… a novel take on things is about the best you can say for that.

AlexJ
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Trafford Welfare Rights

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Did you get an outcome from the FtT on this case Graham?

Many thanks

Alex

AlexJ
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Just to update this thread with the outcome of my case.

I have just had the decision through from the FtT and the appeal was allowed. At the hearing, the Judge did seem to be conflicted over whether she had jurisdiction to disregard the provision at paragraph 1(c) of Schedule 2 of the UC (Transitional Provisions) Regulations 2014 (as they were before 27th January 2021), because it was seemingly at odds with the High Court’s findings in TP. Evidently she decided in the end that she did have such jurisdiction. 

We’ll see what happens next and I’ll keep this thread updated for anyone who is interested.

Cheers

Alex

Sushila
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Mary Ward Legal Centre, London

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Hi all,

I have a similar case where my client moved from irESA to UC on 20/03/2018 because she had been encouraged to do so by the Jobcentre. At the time she was receiving PIP at standard DL and was living alone with no-one getting CA for her, so received the SDP in her ESA claim.

On 30/09/18, her PIP claim ended following a re-assessment that my client did not challenge. On 23/07/19, a DWP decision maker considered whether my client was entitled to the transitional SDP amount because she did not meet the relevant criteria at the date of this consideration (because her PIP claim had since ended). She was still living alone and with no-one getting CA for her.

DWP have applied the pre-27 Jan 2021 version of Schedule 2, which appears to be correct but works to my client’s detriment.

Alex & Graham, from what you’ve said, it seems like it would be worth attempting to argue discrimination at FTT and – in my case – ask them to disapply Schedule 2 1 (d). Any tips or (if not too cheeky) submissions gratefully received!

Thanks,
Sushila