IR ESA and Universal Credit

Mixed aged couple. Mr became entitled to RP in October and has just been awarded PIP Daily Living. Previously in receipt of Carers Allowance prior to RP. Now underlying entitlement. Wife in receipt of CB ESA for many years, and also receives PIP Enhanced Daily Living. Both live alone. Wife could establish an underlying entitlement to Carers Allowance. Prior to RP they had a joint claim for Universal Credit. Payment of Universal Credit stopped because of the amount of RP. However, the UC claim is still ‘live’/open, and has been for two months as UC have not closed it. Leaving aside UC for a minute, if the wife claimed IR ESA, with double SDP and Carers Premium, there would be entitlement of around £170 per week. However, ESA Centre say it is not possible to make a claim for IR ESA, the reason being, with the introduction of Welfare Reform/UC, it is simply not possible.

Personally I think ESA Centre are wrong in so far as it is possible to claim the IR ESA top up, but the real issue revolves around the ‘live’/open claim for UC. Does the UC claim stop the IR ESA top up? It is something of a crazy situation in that there is no entitlement to UC, but if the IR ESA top up was possible, then £170 per week. A significant difference. For completeness I should add that this is a Northern Ireland case, but any thoughts/suggestions would be very welcome. I would be inclined to advise making the claim to test the waters so to speak, but I’m hoping to get some feedback first.

Unfortunately, when UC was claimed by the couple, her ESA award changed to a ns-ESA award, so it is now impossible to add ir-ESA to her ESA award.

Hi Charles. Thank you for your reply. Can you identify the Legislation which changes the CB ESA to New Style CB ESA?

This is the ‘lobster pot’ effect. Once you claim UC, entitlement to existing legacy benefits is extinguished and your old-style contributory awards permanently become new-style awards, with the consequence that later supersession to introduce the income-related elements is impossible.

The legislation in Northern Ireland is, I think, art. 39 and schedule 3 of the Welfare Reform (Northern Ireland) Order 2015 as commenced in an individual case by art. 6 of the Welfare Reform (Northern Ireland) Order 2015 (Commencement No. 8 and Transitional and Transitory Provisions) Order 2017.

Just to add to Elliot’s post, art. 140 and schedule 12 of the Welfare Reform (Northern Ireland) Order 2015 also contain relevant provisions.

Art. 6 of the No. 8 Commencement Order is the relevant commencing order for parts of NI. Other areas have equivalent provisions (generally art. 4 of the relevant Commencement Order).

It is important to take note of para. (6) of art. 6 of the No. 8 Commencement Order (which is also applied to the other Commencement Orders), as that is what continues the effect of the abolition of ir-ESA even after the UC award has ended.

Thank you Elliot & Charles. Very informative.