I have a client who has been awarded income-related ESA (support group) and her partner works 37 hours per week for £30,455 per year. She receives high rate care component DLA. They also receive maxmimum Working Tax Credit and Child Tax Credit by virtue of her income-related ESA award. They also receive maximum Housing Benefit and Council Tax Benefit. They live in the same household as husband and wife.

When she initially made her claim for ESA, it was refused on the grounds that she had paid insufficient NI contributions and also because her partner earms more than the applicable amount for a couple. She submitted information from the Disability Alliance ESA 2008-2009 guide |(page 18-19) which states 'that even if your partner is working more than 24 hours or more a week, they are treated as if they were not engaged in remunerative wotk if they are caring for a person who gets the middle or highest rate of DLA care component. All hours of work are ignored, not just those spent caring'. Client was then awarded the income-related ESA based on this information. She has queried this on numerous occasions and they have confirmed that they are aware of partners income and hours of work and the award of income-related ESA is correct as they are not taking into account his income.

I have looked at the page the client has referred to and further down it states 'although you are not excluded from income-related ESA on account of the number of hours your partner works in these cases, any earnings are taken into account in the usual way'. I have contacted the Jobcentre who stated that they could not provide the legislation used to determine the clients claim. The client has now sent me her ESA260 10/08 which confirms that because she is in receipt of high rate care component, they do not take into account any earnings from her husbands job.

Her ESA claim has now been suspended. She has contacted the Jobcentre who have confirmed that they are still ignoring partners income however they are now looking into their Working Tax Credit income to see if this affects her entitlement to income-related ESA.

Client wants to know why they are not also disregarding the WTC as it is being paid to into the partners account. However I am more concerned about whether the fact that the Jobcentre are ignoring the partners income in the first instance is correct.

Could anyone advise me on whether the Jobcentre are correct in ignoring the income (not just the hours) and point me in the direction of the legislation which states that they can do this?

Many thanks in advance.

I think you were right in the first place - it is the hours of work that are ignored, not the income. It sounds like she was never entitled to the ESA, but the overpayment should not be recoverable.

Yes, it's all about the hours. If the partner is caring for the claimant, then, in theory, they are able to work for 24 hours or more, without the partner being automatically excluded from IS/IRESA. However, all income will be taken into consideration.

I can fully understand an ESA decision maker awarding benefit on the basis of the first paragraph from the photocopied page of a handbook that a client has sent in. They've got to take whatever guidance they can get.

I'm not quite sure I understand why the couple are getting maximum WTC and CTC (unless Mr has only started work recently).

Playing devil's advocate, though, I wonder why the client submitted 'evidence' to support her claim for a revision of the original decison, and then queried the successful revision 'on numerous occasions'. Did the client contact the Local Authority and query her entitlement to full HB and CTB, also?

Anyhoo, based on the information provided here, the DWP have made a massive error.....