UC bedroom tax supersession

I have a UC appeal regarding arrears of an additional bedroom to the UC LHA rate for a couple who cannot share a bedroom.

The facts of this case are that couple were on UC and started a tenancy July 2021. At this time neither of them were on PIP and no request was made for an additional room. The wife had a claim pending for PIP and the husband was waiting for an appeal against his PIP refusal. Wife was awarded both SR PIP on 22/02/2022 prior to FtT hearing. No request was made for additional bedroom at this point because she could share a bedroom and it was her husband’s disability which caused him to be unable to share a bedroom.

Husband was awarded both ER PIP September 2022 wef January 2019. He asked for the additional bedroom in September 2022 and this was originally refused but the appeal was lapsed and an additional bedroom was allowed from September 2022.

A further appeal has been made asking for the additional bedroom to be allowed from the start of the tenancy July 2021. DWP has stated that the supersession rules only allowed the change to take effect from the date of notification and my client cannot backdate this supersession further under Regulation 36 UC (D&A) Regulations 2013. DWP has stated that both members of the couple are unable to share a bedroom so the wife should have requested this (they have not said when she should have asked for it i.e. at the start date of the tenancy or at the date of her PIP award).

I have argued that paragraph 21 of Schedule 1 of the above regulations ought to apply i.e. the additional bedroom was only possible once PIP DLc was awarded. Paragraph 21 does not impose any time limits on requesting this type of supersession.

Please let me know if any workers have come across this issue and what advice you can give me.

Could it be argued that Sch 1 para 31 of the D&A Regs applies in this case and the effective date for supersession is the date that PIP was awarded from?

Also I don’t believe that the UC claim form asks about being unable to share a bedroom. Not sure it’s relevant in this case but I’m coming across more and more of these issues where there’s simply no way for UC to accurately assess entitlement as the relevant questions aren’t asked. Maybe I’m missing something and these questions get picked up manually once the claims are submitted…