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Forum Home  →  Discussion  →  Housing costs  →  Thread

housing benefit and ESA C - effect of occupational pensions

dizzymare
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Welfare benefits adviser - Dudley MBC

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Joined: 18 June 2010

Good afternoon

I currently have a case where a couple both receive ESA C. One partner also receives an occupational pension which is paid above the level of £85 and so his ESA C is reduced accordingly by 50% of the excess.  Both parties are in the support group for ESA. As a result, the person receiving the pension and ESA only receives £72 per week ESA C rather than the full £108.15.

The couple claim housing benefit. They are given a couple rate, support component x 1, carers premium x 1 (only one able to care) and enhanced disability premium at couple rate.

All seems correct so far. However, I am trying to sort out the claim for HB as they are currently taking the full amount of ESA C into account, and not the amount that is actually paid after adjustment for occupational pension.

This doesnt seem correct, but the problem is I cant find anything to indicate that it isnt. The regs appear to say that it is the gross amount that should be taken into account (reg 40) para 5 does state that where any deduction is taken into account in respect of a recovery, it is the gross amount that should be used, but this only refers to the situation of an overpayment - any clues?? any advice gratefully received

thank you

 

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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I have come across this in the past with the equivalent Incapacity Benefit rule.  I do not think that what the Council has done is correct.  I would start from the poisition that the claimant is simply not entitled to the full rate of ESA(c) to start with -  Section 2 of the Welfare Reform Act 2007 provides for the amount of a contributory allowance to be the prescribed standard rate, plus any component to which the claimant is entitled, minus any pension adjustment applicable in the claimant’s case.  The result is the rate of the claimant’s ESA entitlement. There is no need for the Regs to make specific provision for the pension deduction because it is absurd to add it back in - there just isn’t any reason to regard it as part of the claimant’s income in the first place.

dizzymare
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Welfare benefits adviser - Dudley MBC

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Joined: 18 June 2010

thank you for your help - will tackle this further and hope they see sense.

 

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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There is a line of authority, Chief Adjudication Officer v Leeves, R(IS) 4/02 and CIS/5479/1997 that only income actually paid to the claimant counts as income.  This can be extended to the HB scheme.  Previously discussed here.

http://www.rightsnet.org.uk/forum-archive/indexffdf.html

andyrichards
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City services - Brighton and Hove City Council

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It’s just counting the same income twice isn’t it - or is that too simple?

Jon Blackwell
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Programmer - Lisson Grove Benefits Program, Brighton

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dizzymare
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Welfare benefits adviser - Dudley MBC

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Total Posts: 318

Joined: 18 June 2010

thank you - hopefully will be swiftly resolved. Andy, I agree, it is indeed counting the same income twice.