My clients are a couple. He is on Contribution based ESA and DLA. She is his carer and is just about to be paid her first installment of Carers Allowance. They do not yet get Income Based ESA, although the DWP say they are getting it they do not actually seem to have been paid as they only get the £64.30 for his ESA(C).

As they would be better of if she claimed IS as a carer she has done so (even the local Housing Benefit dept advised her to do this) but she has been told that they need to withdraw either the ESA claim or the IS claim as they were mutually exclusive. We suggested he withdraw his ESA (income based ) claim but the DWP will not apparently do this - they say it has to be the whole claim, including the ESA(C).

s.6 (1) (d) of The Welfare Reform Act 2007 says that a claimant cannot get Income Related ESA (it says nothing about Contribution based ESA) if they are part of a couple and the other half gets IS so it seems possible that that IS and Contribution Based ESA are not mutually exclusive at all. The Disability Rights Handbook says that a couple can choose whether to claim Income Based ESA or IS in exactly the circumstances described above.

Have I missed something?

You are right.

By the sounds of it he is not actually getting IR ESA anyway - if he was he would be getting £100.95.

Even if he was getting both Cont based and IR ESA they can just stop the IR bit - they would stop it if he won the lottery wouldn’t they?

I say put the IS claim in, if they refuse at least you have an appealable decision.

She has already claimed IS but they are saying they cannot process it until she and her husaband decide whether to drop the entire ESA claim!

Don't they have to make a decison on a claim?

I think they are saying that they are still in the process of reaching a decision! What I was asking was whether I had missed something and there was a good legal reason why they HAD to make a choice and your first reply has both confirmed what I felt and given me a good line of argument (ie the lottery bit)Thanks

See CPAG p1126, even if they decide that the claim is not valid, they have to issue a decision stating this.

Hi

I have a couple in a sort of simmilar situation, she claims Incapacity Benefit (through having made her national insurance contributions) and income support through being incapacitated. She also gets income support for her husband, who is not claiming anything in his own right. Her husband is disabled but worked last about three months ago. If the husband claims contribution based ESA, will it mess everything up?

Thanks

Hi,

The husband can claim cont based ESA and then they can choose - either she claims IS for both, or he claims income related ESA for both of them.

Section 1 of The Welfare Reform Act 2007 says that a person cannot get ESA if they get IS. It does not stop a claimant getting ESA if his partner gets IS. As Pete said, schedule 6(1)(d) prevents IR/ESA being paid if the claimant’s partner gets IS. The Act (and subsequent regulations) is completely silent on the matter of a person claiming Con/ESA while his partner claims IS. So there is no statutory bar to both being claimed.

Thanks very much for the help