Student on ESA

Client just started a course which equates to 14 hours a week but is deemed as full time by college, client not on DLA or PIP but claiming ESA, unclear if contributory or income based at the moment….....

Due to full time nature of course we don’t think client can claim ESA without DLA or PIP being also in payment….......unless college can describe course as part time we cannot see how claim can continue….not to mention the impact on HB. Course is diploma based, not higher education.

Sorry I know its Monday but my brain is not at it’s best today….

Thoughts anyone??

What course is it?

For some courses library work will count toward the hours assessed by the college.

We haven’t got exact details yet other than it is further education, 14 hours tutor led with additional study hours hence the college stating it is full time.

Would your student still get HB under the provision for LCW?

I got this link form CPAG when i’d a similar situation and it may apply

The law relating to this provision is at regulation 56(2)(ea) of the Housing Benefit Regulations 2006, which states that the general rule excluding full-time students for HB does not apply to a student:

“who has, or is treated as having, limited capability for work and has had, or been treated as having, limited capability for work in accordance with the ESA Regulations for a continuous period of not less than 196 days and for this purpose any two or more separate periods separated by a break of not more than 84 days must be treated as one continuous period”

The HB guidance manual covers the issue at paragraph 2.30 of volume C2 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/236969/hbgm-c2-student-claims.pdf

It’s always worth checking whether reg’15(2)(c) of the ESA Regs’ applies.  Section 14 of the Education Act 2002 needs to be read together with sections 15, 16, and 17.

See also ESA Reg 131 “full-time course of study”. Unless the course fits one of the definitions there is no definition of what is, or is not, a full time course (of study).

The general principle is that the definition of the course provider should be accepted unless the claimant can provide evidence to the contrary - see CPAG p908 footnote 29 for a long list of case law. It is the definition of the course, not the individual students attendance on it or how much study they actually undertake that is relevant.

The problem is that there is no definition of what is (or is not) full time (or part time) in the Regs apart from those at Reg 131. A college may describe a course as ‘full-time’ for their own funding purposes etc.

The issue of supervised and unsupervised study does not arise for ESA (unlike CHB or CA - where there is a raft of unfavourable caselaw on the issue) - the definitions in ESA/IS/JSA/HB do not include reference to ‘supervised study’

How old is your client? - There may be a further complication for a ‘qualifying young person’ because the appears to have been a change in the definition of what type of course is “approved training” under CHB Reg 1(3). It appears the definition of (in England) “Foundation Learning” and “Access to Education” have been changed. We have seen several cases where HMRC have stopped CHB/CTC because the course attended is no longer considered as “approved training” (but is presented by HMRC as an issue about the hours of attendance).

So, for example, if it is a course of non-advanced education and does not fall within the definition in Reg 131 or CHB Reg 3 it may be possible to argue it is not a “full time course of study” regardless of what the college define it as (you may need to gather clear evidence from the college about the course, the attendance and study requirements, how they are funded for the course etc.)