Owen Stevens looks at the so-called ‘SDP gateway’ and preventing new claims for universal credit by certain severely disabled claimants.
What is the SDP gateway?
The SDP gateway is a rule that prevents, from 16 January 2019, certain severely disabled claimants from making a new claim for universal credit (UC) before they are subject to the official ‘managed migration’ process, and so prevents them from undergoing ‘natural migration’ to UC. The intention is to ensure that claimants entitled to the severe disability premium do not end up worse off having transferred to UC under natural migration. The relevant rule is at regulation 4A of the Universal Credit (Transitional Provisions) Regulations 2014.
1 Inserted by reg 2(3) Universal Credit (Transitional Provisions) (SDP Gateway) Amendment Regulations 2019, No.10 It provides that:
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 thatincludes 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.
Reference to the severe disability premium (SDP) means the premium in awards of income-related employment and support allowance (ESA), income support (IS), income-based jobseeker’s allowance (JSA) or housing benefit (HB).
2 Reg 2(1) Universal Credit (Transitional Provisions) Regulations 2014, No.1230, inserted by reg 2(2) Universal Credit (Transitional Provisions) (SDP Gateway) Amendment Regulations 2019, No.10Corresponding changes mean that a claimant who is prevented from claiming UC by the gateway can make new claims for legacy benefits and tax credits.
Entitlement to an existing benefit
Usually, ‘entitlement’ to a benefit depends on a claim for it having been made (or being treated as having been made). The SDP gateway is closed (ie, so as to prevent a new claim for UC) to people who were ‘entitled’ to an award of an existing benefit that includes an SDP. This will not be a problem for legacy benefits claimed jointly (such as some income-based JSA awards), as here both members of the couple will be claimants.
However, there will be situations in which a legacy benefit is (formally) claimed by just one member of a couple for her/himself and her/his partner (such as income-related ESA, IS, HB, and some income-based JSA awards). In these situations only the claimant (not her/his partner) will have been entitled to an award that includes an SDP.
What if UC is claimed in error?
Official HB guidance says that if a claimant is wrongly let through the gateway (ie, so as to claim UC), s/he should be returned to legacy benefits, even if s/he has received a UC payment.
3 Housing Benefit Adjudication Circular A1/2019 Although not made clear in the guidance, it is very arguable that where the gateway should have applied, there can have been no lawful claim for UC (ie, because the claim should have been prevented by the gateway) and that therefore any UC award is in error.
The guidance also says that local authorities must not reinstate HB unless they receive an instruction from the DWP.
4 HB memo A1/19 Very arguably, this approach is unlawful as the decision falls to be determined by the local authority.
5 Sch 7 Child Support, Pensions and Social Security Act 2000 and reg 89 Housing Benefit Regulations 2006, No.213What if the SDP is awarded retrospectively?
It is by no means uncommon for entitlement to the SDP to arise only after a successful appeal regarding entitlement to a qualifying benefit – eg, to the daily living component of personal independence payment (PIP). What if this happens only after UC has been claimed, but the result of the appeal is that, had the award been correctly made at the time, the claimant would have been entitled to the SDP and so prevented from claiming UC? At time of writing, the official position was unclear. But it is arguable that UC should now be regarded as having been claimed in error, as described above, and that the UC award should now be removed and entitlement to legacy benefit reinstated.
Specifically, having sought revision or supersession of the legacy benefit award which preceded a UC claim so that the legacy benefit now includes SDP, then it would be possible to argue, as described above, that whatever may have happened administratively, legally there was no lawful claim for UC.
If that is not accepted, this could leave such claimants in a situation resembling that of PR (now known as
Reynolds) in
TD and Others v Secretary of State for Work and Pensions [2019] EWHC 462 (Admin) (1 March 2019) in that they have transferred to UC following an incorrect decision by the DWP. Had the correct decisions been made, the individual would have been prevented from claiming UC by the SDP gateway. Arguably, such claimants are the subject of unlawful discrimination compared to similar claimants whose entitlement (eg, to PIP and income-related ESA) was correctly decided so as to award the SDP without appeal, and so are prevented from claiming UC. At time of writing, the discrimination argument in
TD and Others had been rejected, but CPAG was seeking leave to appeal. CPAG is interested in a legal challenge in this sort of case. Please complete the
test case referral form.
Temporary or specified accommodation
Some people who have correctly transferred to UC may have an opportunity to move back to legacy benefit if they (1) move into temporary or specified accommodation and (2) start to receive HB with an SDP in their applicable amount.
Even where the claimant is ‘passported’ to maximum HB, her/his applicable amount must be calculated.
6 s130(3) Social Security Contributions and Benefits Act 1992 So there should seem to be no problem in showing that the HB ‘includes’ the SDP.
Given this, it should be possible for such a claimant in temporary or specified accommodation to end her/his claim for UC and then (as now, subject to the SDP gateway) reclaim legacy benefit.
However, note that:
•nothing is known about what the official response to seeking to give up UC in order to move back to legacy benefit would be, and as giving up UC is giving up a subsistence benefit, such a step is not without risk;
•no ESA work-related activity component could be paid and due to the abolition of the work-related activity component,
7 By ss15 and 16 Welfare Reform and Work Act 2016, from 03/04/17 there are no savings provisions to protect people moving from UC with a limited capability for work element to an award of ESA;
•according to the current drafting of the draft managed migration regulations, anyone choosing to come off UC and move back to legacy benefit in this manner would forfeit any UC transitional payment that s/he may have become entitled to in future in her/his UC award.
Couples and the SDP gateway
In certain circumstances, entitlement to UC can arise either without a claim or someone can be
treated as having made a claim. A couple are treated as making a claim for UC where:
8 Reg 9(8) Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013, No.380•one of them was entitled to UC but ceased to be entitled to an award of UC (whether as a single person or member of a different couple) on formation of the couple;
•the other member of the couple did nothave an award of UC as a single person before formation of the couple; and
•the claim is to be treated as having been made on the day after the member of the couple mentioned in the first bullet point ceased to be entitled to UC.
Under official guidance, the SDP gateway does not apply where a UC claim is
treated as having been made on the formation of a couple by a single UC claimant and a person who was previously entitled to a legacy benefit (even with the SDP included).
9 Memo ADM 01/10, para 14 Arguably however, the SDP gateway should apply to certain claimants even where they form a couple with a UC claimant and would otherwise be treated as making a claim for UC – eg:
•the couple live in temporary or specified accommodation and continue to be entitled to SDP in their HB on formation of the couple;
or
•the UC claimant would her/himself fall within the category of a partner who can be ignored for the purposes of the SDP – eg, s/he gets a qualifying benefit or is severely sight impaired.
More widely, it might be argued that where any UC claimant forms a couple with someone entitled to the SDP in a legacy benefit, it would be unlawful to treat her/him as doing something (ie, claiming UC) which otherwise the SDP gateway is expressly intended to prevent. Arguably in this situation, no UC claim should be treated as having been made, and the legacy benefit should instead be adjusted for a change of circumstance (even where that does result in the loss of the SDP). At time of writing, however, these arguments were untested.
An alternative (and potentially safer) approach would be for the UC claimant first to withdraw her/his claim for UC – ie, prior to formation of the couple. The SDP gateway would then be closed to the couple for any claims to benefit within a month of the last day of entitlement to a benefit which included the SDP. Of course, even this approach would involve a UC claimant giving up her/his entitlement.
More generally
Claimants who have an award of UC resulting from a claim at a time when the SDP gateway should have been closed would be best advised to request a revision of the decision both to stop the legacy benefit and also request a revision of the decision awarding UC. However, it would be hoped that the DWP would treat a request for revision of the decision to end the legacy benefit as also being a request to revise the award of UC.
Claimants cannot move back to legacy benefit during a ‘relevant period’.
10 Art 5(3) and (4) Welfare Reform Act 2012 (Commencement No.9 and Transitional and Transitory Provisions and Commencement No.8 and Savings and Transitional Provisions (Amendment)) Order 2013, No.983 Broadly, a ‘relevant period’ is:
•a period of entitlement to UC;
•a period when a claim has been made or treated as made but a decision has not yet been made on the claim;
•the Secretary of State is considering whether to revise a decision that a claimant is not entitled to UC, or the claimant(s) have appealed against that entitlement decision to the First-tier Tribunal and that appeal or any subsequent appeal to the Upper Tribunal or to a court has not been finally determined.
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