Mixed age couple query

Hi wondering if someone could help?
We have a couple where the older partner will be turning pension age in a few months. They currently claim Income Support (couple claim in older partner’s name, she also claims carers allowance) and the younger partner claims contribution based ESA.
Can the younger partner ask ESA to re-assess their claim to include their partner if the Income Support is stopped? This would mean that there would be an entitlement to income related ESA before the older partner turns pension age? This would mean that they could stay on ESA and also keep their HB . They would be considerably better off than going onto UC. They have tried calling ESA but were fobbed off. Is the answer completing and sending in an ESA3 form? Many thanks

No.

Once the older partner becomes Pension Age it wont help even if it were possible to convert to income based which it isn’t.

Look at it this way. In the old days, if they had decided to claim the income based addition to ESA with the older partner as dependent, the state pension would count as income against income based ESA £ for £, just as it does for Universal Credit. You cannot not claim a State Pension when getting means tested benefits as it would be treated as though notional income - that is to say they would calculate entitlement as though it were in payment.

So as it stands, Contribution based ESA and State Pension are converted to monthly amounts and set against the maximum Universal Credit payable. Carers Allowance would be lost anyway if the State Pension exceeds the amount CA would have paid due to overlapping rules.

On another matter, Contribution Based ESA and Carers Allowance exceed what a couple rate of income support with a carer premium would pay - it sounds from what you have wrote as though an overpayment could be going on here.

Sorry but not sure I agree that it’s not worth it.

First of all, as we know, an ESA award can be made up on one or both components of ESA, income-related and/or contribution-based. Provided the contribution-based ESA award is the “old” ESA and not New Style ESA, then I think it should be possible for the younger partner to ask DWP to assess for income-related ESA if and when the IS award is terminated. Might not be easy but I can’t see on what basis they can refuse to assess for income-related ESA in that case.

Once the older partner then reaches State Pension age, a pensioner premium should be added to the income-related ESA award and any State Pension received by them would count in full as income. However, their overall applicable amount for ESA would be the equivalent to if they had been able to claim PC (which we know they can’t until the younger partner also reaches State Pension age). So they will be better off overall.

It looks as if you are saying the older partner claims CA and if they have a State Pension entitlement that pays more per week than CA, then the CA award stops also but an underlying entitlement remains.  As such, a carer’s premium is also possible in the income-related ESA award.

So definitely worth trying in my opinion.

Thank you Paul that is what I thought. With the pensioner and carer’s premiums there would be some entitlement to income related ESA even when she starts receiving her state pension and they would be much better off than the UC route. My worry though is how do we make ESA re-assess the partner’s contribution based claim when they are refusing to entertain this when asked to do so over the phone.

Maybe wave RS v Secretary of State for Work & Pensions (ESA): [2021] UKUT 112 (AAC) in their general direction and threaten JR if they still won’t move?

Hi just wondering if I could have some further advice on my initial query please?

Older partner has stopped the Income Support claim and we are asking ESA to re-assess the younger partner’s claim as there should now be entitlement to income related ESA. ESA were having none of it when we tried doing this over the phone so we submitted an ESA3 form back in July but to date there’s been no written decision on this. Older partner (who we want to add to the younger partner’s CBESA claim to make it income related) turns pension age at the end of this month.

In the meantime we have been trying to speak with ESA by phone without much success only to be told that she cannot be added to the claim and that they must claim UC. This has now been backed up by a contact in JCP who has spoken with a legacy expert but still no actual written decision.

HB will be ending shortly and if there is no IRESA in place by the time she turns pension age they will not be able to stay on ESA/HB and will be worse off.

Has anyone else had any joy adding a partner to a CBESA claim to trigger an income related entitlement recently as everyone we speak to at the DWP are adamant that this cannot be done and the only route for them is UC…...

Don’t think we’ve done it with CBESA but definitely done it a few times this year with IRESA. We found like you that over the phone they would do nothing but also discovered that paper ESA3s just sit in a pile somewhere unless you ring and ask them specifically to process it. That has worked for us. If you’ve already done this and they won’t act could you try your Partnership Manager? Failing that if they won’t issue a decision I guess it would need to be JR.

I’m frequently supporting clients to update their ESA etc claims now in preparation for moving to UC. Namely to add SDPs, but the process/issues is similar.

Constant dragging of feet and excuses from DWP, so now resorting to always sending a recorded letter to them to evidence timely reporting etc. Annoying waste of money.
Clearly spelling out what they’re entitled to and why.

As Paul mentioned originally it will depend if the ESA claim that the younger partner has is old or new style ESA. If it is new style ESA then the Cont based claim cannot be converted to ESA (IR). Check when did the younger partner claimed ESA and that will give a better indication.