18 year old lad with learning disability attends special college, clearly entitled to cbESA under youth conditions. DWP are refusing to award ESA because CB still in payment to mum. I can find nothing in the regs which prevents ESA being awarded for a qualifying young person for whom CB is in payment. However there is a CB regs which prevents CB being paid for someone who gets ESA. In other words the ESA claim takes precedence, and where CB is also being paid there will be an overpayment of CB. Have I got this right?

Had a client who was advised the same thing recently. Eventually was correctly advised that once ESA claimed then CB and CTC stop. See chapter 39 of Disability Rights handbook. Ask your client to take note of the questions being asked regarding her sons disability, I posted earlier about the terminology being used.

My understanding from the Tax Credits Technical Manual (section 02214) is that the CTC only stops if the qualifying young person gets contributory ESA, which would be the case if they went the youth route. If they get income related ESA only, the parent can still get CTC. To get cbESA the QYP has to be in education under 21hrs/wk, disregarding any hours which would not be appropriate for a non-disabled person. Where possible we have generally argued that the hours are under 21/wk to get the QYP on to IB (subject to how much the parent would lose in CB+CTC). Now it appears that we should be arguing they are doing over 21hrs/wk so they get irESA not cbESA, assuming they are on DLA. That way the parent keeps the CTC, but not the CB.

Brian

I'm afraid you have been right up to now.

You're right that that section of TCTM only refers to contributory ESA but see TCTM 02220. Reg 5 of CTC regs was amended so that someone claiming i-b ESA ceases to be a qualifying young person for CTC purposes and so cannot be claimed for.

Tony

Thanks Tony. You know what they say about things that look too good to be true...................

Just had a very useful conversation with a very helpful person from the local DBC re my original posting. DWP accept that a young person can be entitled to ESA when an adult is getting CB for them, and that this would result in a recoverable overpayment of CB. However they do have a national procedure for recovering the CB overpayment from the youngster's ESA. If the DWP gets an ESA application from a person under 20 and they meet all the conditions, the DWP award ESA but suspend the payments and send a query to the CB office. If the CB office responds that CB is in payment the DWP notifies the ESA claimant that ESA is supended until the CB is relinquished and payments have stopped. When the CB has stopped, the DWP puts the ESA into payment, pays the arrears minus the CB overpaid, and informs the CB office. There are some exceptional circs under which the overpaid CB is not offset against the ESA arrears, but I don't know what they are.

Presumably there is a legal basis for recovering an overpayment of one person's benefit from another person's benefit, where the benefits are for financial support of the same person. Anybody know what that basis is?

Well, there certainly was a basis under IB to offset the amount of child benefit paid for a period covered by a subsequent award of IB(Y) to the child, against the arrears of IB that become due on the award - regulation 5(1) and case 3 of the Social Securty (Payments on account, Overpayments and Recovery) Regulations 1988. I can't see the amendment to that regulation to take account of the introduction of ESA but there may be one

(Brian)