[2023] UKUT 288 (AAC)

At the material time regulation 4A(1) of the Universal Credit (Transitional Provisions) Regulations 2014 (SI 2014/1230), otherwise known as the SDP Gateway, provided as follows:

This provision was inserted with effect from 16 January 2019 by regulation 2(3) of the Universal Credit (Transitional Provisions) (SDP Gateway) Amendment Regulations 2019 (SI 2019/10).Regulation 4A was later repealed with effect from 27 January 2021 but evidently that date was after the period in question in this appeal. So, on the facts and as a matter of law the DWP should have applied regulation 4A.

Regulation 2(1) defines “existing benefit” to include the so-called legacy benefits, and so the expression includes both IRESA and housing benefit.

The FTT found that at the time the claimant applied for UC (on 10 December 2019) he was still entitled to an award of an existing benefit (housing benefit) which included the SDP. That finding was undoubtedly open to the FTT on the evidence before it. As such, regulation 4A(1) meant that the claimant was a person who should have been barred from making a claim for UC. As the FTT put it in its detailed and comprehensive statement of reasons, he “was prevented from making a new UC claim at that time by virtue of his entitlement to a benefit with the SDP element.”

The Secretary of State’s representative argues that in any event, and on the true facts at the material time, the claimant should not have been entitled to payment of the SDP as part of his housing benefit award. That may or may not be correct. However, the FTT can only decide an appeal on the basis of the evidence before it and the local authority had given clear evidence in this case that the SDP was still in payment as part of the claimant’s housing benefit award.

So, although the DWP was presented with what appeared to be a valid claim for UC, the FTT was correct to find that it was from a person whose circumstances were such that he should not have been allowed to claim UC.