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Protective claim for HB
Cl is on ESA and his wife gets PIP including the DL. He is appealling a PIP refusal.
Recently they have moved to a rented property after having lived with family for a while. He needs to claim for the rent but is intending to try and manage with help from family rather than claim UC until the PIP appeal is heard, so as not to lose the chance of 2xSDP on the ESA. His appeal could be several months away.
Can he make a protective claim for HB now that could be decided later on (or revised if refused) or is making a claim now impossible until he actually gets the SDP?
I don’t see how, unfortunately. They’ll be making a new claim for a legacy benefit which will be turned down as there is nothing currently stopping them going through the UC gateway. They could wait but as you say that could be months.
Ok thanks, that’s what I thought but was just hoping there was some way round it….
Ok thanks, that’s what I thought but was just hoping there was some way round it….
If you’ve got a sensible Housing benefit department they might be willing to stockpile the claim until the PIP appeal is determined.
Problem is that the government’s position is that an SDP included retroactively due to an appeal doesn’t establish the SDP gateway from that earlier date, so I’m not sure the claim would be valid even if the appeal is won.
Problem is that the government’s position is that an SDP included retroactively due to an appeal doesn’t establish the SDP gateway from that earlier date, so I’m not sure the claim would be valid even if the appeal is won.
I thought we’d discussed this in a previous thread and agreed that the government’s position on this doesn’t seem to be based on what the law actually says. So you might have a fight on your hands, but I think the law is on your side.
Have you got anything to lose by asking HB to take the claim and sit on it?
I thought DWP’s position was that a UC claim made when the claimant is not currently entitled to PIP in “real time” is not retrospectively invalidated by the subsequent successful PIP appeal. In this case, there has been no UC claim and so it’s less of a mess turning back the clock. Should that make a difference?
Legally, there shouldn’t be any difference between the two cases: if the claimant “is entitled” to an SDP only in real time, then arrears of PIP would achieve nothing irrespective of whether UC has been claimed in the meantime. On the other hand, if the successful PIP appeal does retrospectively make it so that the claimant now “is entitled” to an SDP, then any UC claim in the meantime is invalidated, however inconvenient that might be.
But from a practical viewpoint, you can see the attraction of distinguishing the two cases: there is no administrative difficulty in deciding an HB claim that’s been pending for several months if no awkward UC award has been made during those months.
I thought we’d discussed this in a previous thread and agreed that the government’s position on this doesn’t seem to be based on what the law actually says. So you might have a fight on your hands, but I think the law is on your side.
Have you got anything to lose by asking HB to take the claim and sit on it?
Some of us had thought so, but I’m now not sure DWP are wrong. I wouldn’t like to rely on it.
Problem with making a HB claim and waiting is that if DWP win any appeal, the claimant will have lost out on any UC they could have got.
I thought DWP’s position was that a UC claim made when the claimant is not currently entitled to PIP in “real time” is not retrospectively invalidated by the subsequent successful PIP appeal. In this case, there has been no UC claim and so it’s less of a mess turning back the clock. Should that make a difference?
Legally, there shouldn’t be any difference between the two cases: if the claimant “is entitled” to an SDP only in real time, then arrears of PIP would achieve nothing irrespective of whether UC has been claimed in the meantime. On the other hand, if the successful PIP appeal does retrospectively make it so that the claimant now “is entitled” to an SDP, then any UC claim in the meantime is invalidated, however inconvenient that might be.
But from a practical viewpoint, you can see the attraction of distinguishing the two cases: there is no administrative difficulty in deciding an HB claim that’s been pending for several months if no awkward UC award has been made during those months.
I see what you’re saying about the practical side of it, but I strongly believe that there cannot be any difference between the two, as you also say. After all, claiming HB is only allowed where “the person in question would be prevented from making a claim for universal credit” (No 23 Commencement Order Art 7(2)).