SDP entitlement

avk64 · 19 April 2019 at 10:24AM

Hi,

I have a query regarding SDP for my great aunt (mum's aunt).

I live in the same house and do not receive CA for her as I'm pretty much working full time. We have a joint tenancy with the landlord. Aunt receives ESa and PiP. I was under the impression she should receive SDP but has been refused. I have checked DMG chapter 44 volume 8 and found the below:

DMG chapter 44 is found on the gov website in relation to SDP and I think is what DM's use to make decisions from?

Section 44139, part 7 (who do not count as non-dependants)

7. a person of their partner who is not a close relative, except where 8. applies.
who jointly occupies the claimant's dwelling and who is
7.1 a co-owner of the dwelling with the claimant or partner OR
7.2 jointly liable with the claimant or partner to make payments to the same landlord for the occupation of the dwelling

We have a joint tenancy agreement but the not so helpful person on the phone at ESA is adamant it needs to be a separate tenancy. The wording of 7 doesn't to imply separate tenancies.

Can anyone bring some light to this? She receives Housing benefit at the shared rate too which implies this should be granted.

Thanks!

calcotti · 19 April 2019 at 11:05AM

I assume great aunt is getting the Daily Living component of PIP - not just mobility.

As I read it, I agree that you appear to meet the description of someone "who is not a close relative, who jointly occupies the claimant's dwelling and who is jointly liable with the claimant to make payments to the same landlord for the occupation of the dwelling". Therefore you do not count as a non-dependant and your great aunt should be entitled to the SDP.

The person on the phone suggesting you need to have a separate tenancy agreement is wrong. You would not then have a joint liability to make payments so would not come under paragraph 7.2 (but would be covered by paragraph 5.3).

She needs to request a Mandatory Reconsideration of the decision on the grounds of an error in law. https://www.citizensadvice.org.uk/benefits/sick-or-disabled-people-and-carers/employment-and-support-allowance/while-youre-getting-esa/challenging-an-esa-decision/

The relevant law defining non-dependant is The Employment and Support Allowance Regulations 2008, Regulation 71

71.—(1) In these Regulations, “non-dependant” means any person, except someone to whom paragraph (2), (3) or (4) applies, who normally resides with a claimant or with whom a claimant normally resides.
.....
(4) Subject to paragraph (5), this paragraph applies to–
(a) a person who jointly occupies the claimant’s dwelling and who is .......
(ii) jointly liable with the claimant or the claimant’s partner to make payments to a landlord in respect of the person’s occupation of that dwelling;

http://www.legislation.gov.uk/uksi/2008/794/regulation/71/made

calcotti · 19 April 2019 at 11:29AM

Note that if you can get the SDP included it should also be included in her Housing Benefit which will entitle her to the one bedroom rate rather than the shared room rate.

avk64 · 19 April 2019 at 1:29PM

Hi Calcotti,

Thank you for confirming!

Yes it's daily living and also mobility. I used to get CA but haven't been able to for a while due to my income and hours worked now. In fact because of that, my great aunt is needing support from friends and family out of home to care for her in my absence which is why we pursued the SDP.

We haven't' received a decision letter yet and I got the answer on the phone .The rude man send they don't legally have to send a letter to which I said they should so that I can make a mandatory reconsideration. I will call again to chase this up next week.

I was quite sure before we made the claim for SDP that she should be eligible as we are both on the tenancy agreement and I or anyone else do not receive CA. Itis 1 tenancy agreement, both our names, aunt sends me money to my account and I make 1 payment to the landlord.

If I write the mandatory reconsideration letter and just state the law you mention, proof of tenancy(which they already have) and proof of HB then that is enough? I won't need to elaborate any more than that will I?

I didn't know about the HB effect of SDP. I'll make sure to pursue that once SDP comes through.

calcotti · 19 April 2019 at 1:55PM

I would do something like this:

I request a Mandatory Reconsideration of the decision to refuse Severe Disability premium in my ESA award as stated in your letter dated xxxxx. I believe this decision is wrong in law.

My great nephew who lives with me and is joint tenant fits the description of a person who is not a non dependant in that he is not a close relative, he jointly occupies our home with me and he is jointly liable with me to make payments to the same landlord for occupation of our home.

Relevant guidance is contained in Advice to Decision makers paragraph 44139 Part 7. I believe the relevant legislation is The Employment and Support Allowance Regulations 2008, Regulation 71.

Because he is not a non-dependant and no-one else lives in our home I believe I should be treated as living alone. As no-one receives Carer's Allowance for looking after me I am therefore entitled to the SDP because I receive the Daily Living component of PIP.

You can write a letter or use the form here https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/683380/if-you-disagree-with-a-decision-made-by-dwp.PDF.
Guidance here https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/683381/how-to-disagree-with-a-decision-made-by-dwp.PDF

If you do a letter make sure it is very clearly headed Mandatory Reconsideration request.

You need to make the request within one month.

SDP entitlement

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