Universal Credit gateway and the Severe Disability Premium
A short form article on tactics to assist a client who has wrongly been awarded UC
Query
The client was in receipt of income related ESA including an SDP on 29/1/19 when she made a claim for UC after being mis-advised to do so. She still receives PIP daily living component, lives alone and no one gets Carers Allowance for looking after her. She comes for advice after realising that her UC benefit payments with housing costs are significantly lower than income related ESA and Housing Benefit.
Should she have been allowed to claim UC, and is there anything she can do to get back onto income related ESA and Housing Benefit?
Advice
The decision to allow the client to claim UC was clearly wrong due to the SDP gateway, which exists due to a new Regulation 4A inserted into the UC (Transitional Provisions ) Regs 2014 from 16/01/19. It says:
4A. No claim may be made for universal credit on or after 16th January 2019 by a single claimant who, or joint claimants either of whom —
(a) is, or has been within the past month, entitled to an award of an existing benefit that includes a severe disability premium; and
(b) in a case where the award ended during that month, has continued to satisfy the conditions for eligibility for a severe disability premium.”
At the time that the client claimed UC on 29/1/19 she was clearly entitled to the SDP in income related ESA and should not have been allowed to claim UC. Where a client has got through the SDP gateway in error and should never have been allowed to claim UC, the process for getting them back on benefit is not clear.
The client can’t close her claim for UC and make a new claim for income related ESA because the UC claim abolished entitlement to income related ESA under Art. 4 of whichever Welfare Reform Act 2012 Commencement Order applies in their postcode and it has been more than one month since she previously received the SDP in a legacy benefit.
In Guidance given to Local Authorities A1/2019 at para 25 the issue of a claimant getting through the SDP gateway in error is referred to and implies that the SDP team will become involved and UC should simply move the claimant back to their former Housing Benefit entitlement.
There is no guidance issued to other departments of the DWP in this situation, but the same logic should presumably apply i.e. the SDP team should get involved, allow the UC claim to be closed and arrange for the client’s legacy claim to be reopened.
The client can contact the DWP SDP team, refer them to A1/2019 and say this implies that it is their responsibility to close the UC claim and arrange for income related ESA and HB to be reopened. In addition they can use the complaints procedure if DWP refuse to take this further, or dispute their ability to do so. The DWP SDP helpline number is 0800 1814049.
You could also assist the client by involving their UC partnership manager who may be able to intervene on her behalf. Contact details for DWP national partnership managers are here.
Another option is to request a revision due to official error — this would not be late as an official error revision is an ‘anytime revision’. The DWP clearly made an error of both law and a misunderstanding of the facts, so the client could lodge this against the decision to both award UC and terminate income related ESA. The argument is that the client could not have made a lawful claim for UC due to the SDP gateway which applied to the client at the time. Therefore the award was made in error as it could not have arisen from a claim.
Note that it is arguable that any UC overpaid in the above situation should not be a recoverable overpayment, as there could never have been a lawful claim, and hence no lawful award of UC.
Transitional SDP payment
As an alternative to the above, the client could decide not to try and return to legacy benefits, but instead claim a ‘transitional SDP payment’ on top of her UC award. This provision was brought in from July 2019 (alongside the new regulations for managed migration of UC claims) and allows for extra amounts of UC to be paid if a client had been in receipt of a legacy benefit (excluding HB) which included the SDP within one month before the date of their UC claim. However, the amount of the ‘transitional SDP payment’ may not reflect the full amount of the ‘lost’ SDP in all cases, and this is now the subject of a further legal challenge.
Update: The advice in this article does not apply to UC claims made on or after 27/01/21, due to a change in legislation.
Kate Smith works in the Welfare Benefits Expert Advice team at Citizens Advice.
