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housing benefit and ESA C - effect of occupational pensions
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
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.
thank you for your help - will tackle this further and hope they see sense.
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.
It’s just counting the same income twice isn’t it - or is that too simple?
See
- IB/CTB rather than ESA(C)/HB but regs are exactly the same.
thank you - hopefully will be swiftly resolved. Andy, I agree, it is indeed counting the same income twice.