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Backdating SDP linked to a drop in capital
My client has been in receipt of CBESA since 2017. Their capital dropped below £16,000 in July 2018. The client has been in receipt of PIP since this time. The client has recently placed a claim for IRESA and has been awarded SDP and EDP but only backdated to January when they placed their claim.
I would be really grateful if anyone could advise whether there are any grounds for backdating the SDP and EDP to when the client capital begun to drop below £16,000 in July 2018 and any advise on the best way to approach this.
Thank you.
Cannot really see a way. You want a superseding decision to be made on the grounds of a change of circumstance that DWP was not capable of detecting independently without the claimant reporting it.
Circumstances known to DWP before: claimant on PIP and has excess capital
What changed? No longer has excess capital
There is a time limit to report that and the maximum extended time limit of 13 months has long since expired. That means the superseding decision takes effect from when the change was reported in January this year.
What about O.L. v SSWP (ESA) [2018] UKUT 135 (AAC). See really bad copy and paste from a sub below.
7. In which ‘The District Tribunal Judge subsequently gave permission to appeal to the Upper Tribunal in the light of the detailed arguments advanced by Mr Simon Howells, the Appellant’s representative. He explained that:
“e. Rather I accept the submission of the Appellant’s representative that it is arguable that the Appellant’s circumstances fell within reg.6(2)(e) of the regulations: he had entitlement to a ‘relevant benefit’ (ESA) from 18/09/13 (Reg.6(2)(e)(i)), and subsequently was given entitlement to another relevant benefit (PIP) from 24/10/13 (reg.6(2)(e)(ii)). It followed that the date the supersession took effect was from the date on which entitlement to PIP arose (reg.7(7)(a)).
f. Whilst arguably the Appellant’s circumstances fell within both reg.6(2)(a) and 6(2)(e), more likely the latter is to be preferred as dealing more specifically and narrowly with the Appellant’s case (paragraph 8).”
8. Judge Wikeley held in O.L. v SSWP (ESA) [2018] UKUT 135 (AAC). ‘I agree with both representatives that the Tribunal went wrong in law and so I allow the appeal and set aside the Tribunal’s decision. The Tribunal fell into the trap of thinking that supersessions of benefit decisions under regulation 6 were confined to cases where there had been a change of circumstances in general terms. But regulation 6(2) provides for a number of more specific situations’ (paragraph 13).
‘There is no point in sending this case back for re-hearing as the facts are not in dispute. I therefore re-make the Tribunal’s decision under appeal. The Secretary of State’s ESA decision of 5 November 2013 should have been superseded under regulation 6(2)(e) of the 1999 Regulations. This was because that decision awarded the Appellant a relevant benefit (ESA) from 18 September 2013 so satisfying regulation 6(2)(e)(i). Further, the Appellant was awarded another relevant benefit (PIP) from 24 October 2013, i.e. from a date “subsequent to the first day of the period to which that entitlement relates” within the terms of regulation 6(2)(e)(ii)’ (paragraph 14).
I think the events fall the wrong way round is this case. Status quo ante is the claimant already gets PIP but has no entitlement to ESA(ir) due to excess capital. It’s not PIP driving entitlement to ESA(ir), it’s the change in the claimant’s financial situation
I think the events fall the wrong way round is this case. Status quo ante is the claimant already gets PIP but has no entitlement to ESA(ir) due to excess capital. It’s not PIP driving entitlement to ESA(ir), it’s the change in the claimant’s financial situation
Fair enough HB, posted on the off chance, that PIP was awarded 2018 after client’s capital went below £16,000.