Backdated UC Help

Newcad

The Decision Maker has not made an error. (or at least not that particular error)

The situation is what I realised in my post of yesterday afternoon.

Because LCWRA has been backdated to before the SDP Transitional Protection started in January 2021 then the TP does not affect the backpayment.
If the claimant had been getting paid LCWRA in January 2021, as they should have been, then they would still have had the full SDP-TP added to it in January 2021.

However the extra money for the anual increases in April each year of both LCW and LCWRA now affect erosion of the SDP-TP/TE that has been paid since the start, because LCWRA got bigger increases than LCW.

The claimants SDP-TP/TE was already being erroded by anual increases in the claimants LCW element in Aprils of 2021, 2022, & 2023. But because he should have had been getting LCWRA then those increases should have been bigger, so the erosion of the SDP-TP/TE should have been more.
So the difference between the increases of LCWRA and LCW elements in those 3 years now comes into play and it's that difference that is deducted from the backpay.

For instance:
In April 2022 LCW increased by £4.00 a month, so £4.00* a month was knocked off the SDP-TE for that increase in the LCW rate.. (That's how 'erosion' of a Transitional Element works).
However the LCWRA increased by £10.60 a month, so now that extra £6.60 a month has to be knocked off the SDP-TE, which they do by deducting it from the backpayment.
£6.60 x 12 = £79.20 to be deducted from the backpayment for 2022.
Then the same calculation needs to be done for the increases that happened in the Aprils of 2021 and 2023.

*(The actual erosion of SDP-TE would have been more than that because the Standard Allowance also increased, as would any Housing Element or other element, each increase errodes the TE until it has eroded to zero).

poppy12345

Newcad said:

The Decision Maker has not made an error. (or at least not that particular error)

The situation is what I realised in my post of yesterday afternoon.

Because LCWRA has been backdated to before the SDP Transitional Protection started in January 2021 then the TP does not affect the backpayment.
If the claimant had been getting paid LCWRA in January 2021, as they should have been, then they would still have had the full SDP-TP added to it in January 2021.

However the extra money for the anual increases in April each year of both LCW and LCWRA now affect erosion of the SDP-TP/TE that has been paid since the start, because LCWRA got bigger increases than LCW.

The claimants SDP-TP/TE was already being erroded by anual increases in the claimants LCW element in Aprils of 2021, 2022, & 2023. But because he should have had been getting LCWRA then those increases should have been bigger, so the erosion of the SDP-TP/TE should have been more.
So the difference between the increases of LCWRA and LCW elements in those 3 years now comes into play and it's that difference that is deducted from the backpay.

For instance:
In April 2022 LCW increased by £4.00 a month, so £4.00* a month was knocked off the SDP-TE for that increase in the LCW rate.. (That's how 'erosion' of a Transitional Element works).
However the LCWRA increased by £10.60 a month, so now that extra £6.60 a month has to be knocked off the SDP-TE, which they do by deducting it from the backpayment.
£6.60 x 12 = £79.20 to be deducted from the backpayment for 2022.
Then the same calculation needs to be done for the increases that happened in the Aprils of 2021 and 2023.

*(The actual erosion of SDP-TE would have been more than that because the Standard Allowance also increased, as would any Housing Element or other element, each increase errodes the TE until it has eroded to zero).

I don't think it's just the erosion of the TP that was in question here by some members. I think it was the acutal amount of money they were receiving.

As mentioned in the thread when they first claimed UC had the LCWRA element been included from the start as it should have been then the TP would have been £120/month and not £285/month.

huckster

Presumably statements have already been issued with a £285 TP amount included, so when the LCWRA was added, the TP should be revised down to the £120 ?

The £13k the OP's friend was paid, suggests that the TP amount was not revised down to £120.

"The amount of the transitional SDP element in the first assessment period is set at the highest of whichever of the following amounts applies:

•£405, in the case of joint claimants if the higher SDP rate was payable;•£285, in the case of single or joint claimants if the limited capability for work-related activity element is not included in the award; or•£120, in the case of single or joint claimants if the limited capability for work-related activity element is included in the award."

Newcad

poppy12345 said:

I don't think it's just the erosion of the TP that was in question here by some members. I think it was the acutal amount of money they were receiving.

As mentioned in the thread when they first claimed UC had the LCWRA element been included from the start as it should have been then the TP would have been £120/month and not £285/month.

I do get what you are saying, because he was only getting LCW back in Jan 2021 then the amount of SDP-TP/TE he qualified for was much more than if he had had LCWRA.
(The original TP amounts in 2021 paid to those migrated before the Gateway were £120, £284, or £405 depending on circumstances).

It's an interesting one, (and I'd have to spend some time digging to be 100%), but I don't think that there is any legal mecahnism to revise a SDP TP/TE once it has been awarded and is in payment.

The amount you get as SDP-TP/TE is fixed when its awarded, and revising it for individual situations was never envisaged. (Apart from erosion which will be different depending on what elements you get).

If you change groups following a reassessment your existing SDP-TE doesn't change.
Even if you later lose entitlement to PIP/DLA, and so would have lost entitlement to SDP, the SDP-TE will continue to be paid until it's fully eroded.

So I believe that the claimant here has benefited from a legal lacuna - ' a gap, or blind spot, in the law as it stands' - and ended up with a higher SDP-TE then he would normally have had and the DWP have no legal way to take it back off him.

It's only ever going to happen very rarely, that's why odd situations like this get missed out of laws because nobody thinks they might  happen. This may even be the first and maybe the last who knows?

They have had to revise the SDP-TE amount once following TP&AR, and will have to do so again following TP&AR's 4th win in court.
But that is for everybody who has SDP-TE and not individual cases.

calcotti

Newcad said:).

It's an interesting one, (and I'd have to spend some time digging to be 100%), but I don't think that there is any legal mecahnism to revise a SDP TP/TE once it has been awarded and is in payment.

The amount you get as SDP-TP/TE is fixed when its awarded, and revising it for individual situations was never envisaged. (Apart from erosion which will be different depending on what elements you get).

I can see no reason to correctly amend the SDPTE from the start of the claim. The claim is being revised.

poppy12345

calcotti said:

Newcad said:).

It's an interesting one, (and I'd have to spend some time digging to be 100%), but I don't think that there is any legal mecahnism to revise a SDP TP/TE once it has been awarded and is in payment.

The amount you get as SDP-TP/TE is fixed when its awarded, and revising it for individual situations was never envisaged. (Apart from erosion which will be different depending on what elements you get).

I can see no reason to correctly amend the SDPTE from the start of the claim. The claim is being revised.

Can't disagree with that.

Newcad

calcotti said:

I can see no reason to correctly amend the SDPTE from the start of the claim. The claim is being revised.

As I said the DWP have no legal grounds to change an already existing SDP-TE on an ongoing UC award. (other than the usual erosion).
If the DWP could legally change it then I have no doubt that they would have done so.

But if they did that then the claimant could simply go to tribunal, who would tell the DWP to put it back as it was because they have no legal grounds to change it.

You have to remember that even though it is now called an 'Element' the SDP-TE and the Managed Migration TE are not the same as other UC Elements and do not work under the same rules as other Elements. (TE's are actually 'Additional payments', and in legacy benefits such payments are called "Transitional Additions").

They are not 'Elements' in the normal sense because new claimants can't qualify for one on circumstances, the only way to get one is through migration from legacy benefits to UC.

The only way that a UC Transitional Element can be changed is by erosion, or by a change in the law and that would affect everyone with that TE.

A TE can be lost altogether in certain changes of circumstances.

This is an interesting case to come out of what was a fairly simple sounding question to start with.
How many people with SDP do you think were migrated to UC before the SDP Gateway was introduced in Jan 2019, and so later got the SDP-TP in Jan 2021?
And then how many of those do you think were LCW when they got the TP? and how many of those have or will have their LCW claims later revised to LCWRA and back dated to before 2021?
It has to be vanishingly small, this could be a one-off set of circumstances.
I've certainly never seen or heard of one like it before, but it might have happened, I think it unlikely that I'll ever see or hear of another one.

calcotti

Newcad said:

calcotti said:

I can see no reason to correctly amend the SDPTE from the start of the claim. The claim is being revised.

As I said the DWP have no legal grounds to change an already existing SDP-TE on an ongoing UC award. (other than the usual erosion).

I know you have said that but I why can’t I cannot see why that is true if the UC is being revised (not withstanding what you have said regarding the nature of transitional elements).

huckster

I think DWP can revise the TP to £120, due to the revision to include LCWRA instead of LCW. The TP amounts and reasons that they are due, are clearly stated policy, presumably backed up by a statutory instrument.

Newcad

This an interesting case and so I've been looking again at the actual Transitional Provisions legislation(s) and there is no provision that I can find in the various legislation(s) to change a TE once it is in payment.

The legislation does set out that a Transitional Element can be eroded by increases in UC and how that happens, and that certain changes of circumstance can end it altogether, but there is no way given in the legislation to change the initially awarded amount of TE.
(And if it was there it would be with those others).

The fact that there is nothing in the legislation saying if, when, and how the actual awarded amount can later be revised means that legally it can't be changed.
Often, as here, what the legislation doesen't say is as important as what it does say.

BTW another interesting quirk I found is that the initial 'seperate payment' SDP-Transitional Payment was not subject to erosion like a normal Transitional Addition/Element is.
It was the 2021 Transitional Provision legislation that brought it into the main UC payment and made it erodable by linking it to the 2014 Transitional Provisions..

The DWP have to have a legal ground to change awards, and they just don't have any legal ground to change the amount of Transitional Protection originally awarded.
If they did try to change it a tribunal would ask itself what the legal grounds were, and  as there aren't any legal gorunds the tribunal could only ever rule that the DWP have change it back again to what it was.

You have to remember that only around 15,400 people got the 'fixed payment' SDP-TP and most of those would have already been LCWRA.
Those who got an SDP-TP with LCW are pretty few in number, the only figure that I can find is that by August 2019 there were 2,365 migrations from before the SDP Gatway of ESA WRAG + SDP to UC-LCW who had recieved the lump sum backpayment of SDP-TP.
(There may have been a few more identified later).

It looks like the claimant here was one of those 2,365, which is a tiny number in benefits claimants terms.
He may well be a unique case and the only one of those 2,365 who has subsequently had their LCW changed to LCWRA on appeal and backdated in this way.

I doubt that anyone ever envisaged such a situation actually arising, the chances of it arising are miniscule, and so they never made any provision for it in the Transitional Provision legislation(s).