There is a right of appeal when legacy benefits are terminated because of a claim to UC and a claimant should have been sent a decision notice and advised of their appeal rights. Where they have received a decision notice and been advised of their appeal rights, they must exercise their right of appeal. They are welcome to use the arguments in the letters below to do so.
Where they have not been sent a decision notice or advised of appeal rights, this information must be included in any pre-action letter (an MR / appeal should also be pursued).
New DWP guidance
DWP Guidance now says people who had SDP in payment/continued to be entitled and were incorrectly allowed to claim UC, will be allowed to return to legacy benefits including tax credits.
Please see clarification provided to CPAG by way of an FOI response on 06/04/20 - DWP memo to jobcentres
Pre action templates
Claimants entitled to but not receiving SDP
JR52 Failure to reinstate irESA when UC claimed after 16/01/19 and claimant entitled to (but not receiving) SDP (last updated Oct 2020)
JR28 Failure to reinstate HB when UC claimed after 16/01/19 and claimant entitled to (but not receiving) SDP (last updated April 2020) See also HB guidance in JR52 above
The issue of 'entitled to but not receiving' is not covered by the new DWP Guidance, and we hope these letters therefore remain useful.
Partners of lead claimants
Ongoing irESA which has within the last month included an SDP
JR91 Refusal of tax credits as failure to apply SDP Gateway to claimant in receipt of ongoing irESA which included SDP w/in last month (irESA superseded to include new partner) (last updated Sept 2020)
Refusal of irESA SDP top up when on new style ESA (and HB includes SDP)
Please tell us how DWP/HMRC/your local authority respond by emailing firstname.lastname@example.org
This helps us keep the letters up to date and effective for other advisers.