Pension Credit - Mixed Age Couple - HB Transitional Protection

Hello
We supported this MAC to apply for Pension Credit in November 2022. The claim was refused in November 2022 but no decision letter was issued to the couple. When we became aware of this we requested a late Mandatory Reconsideration in June 2023 - this decision is still outstanding. We have provided evidence of Housing Benefit TP when we requested the late MR.  They were members of a mixed age couple on the 14th May 2019 and were entitled to housing benefit. The older member of the couple receives State Pension and younger member of the couple receives contribution-based ESA and Carers Allowance.

I recently acquired the case from a colleague and would appreciate advice on the following questions.

1. The younger working age member of the couple receives Carers Allowance and Contribution-based old style ESA (the CB ESA is unusually reduced by the Carers Allowance award which I have never come across before). As neither of these working age benefits are income-related my understanding is that this should not affect the HB TP in order to claim Pension Credit. Is this correct?

2. The younger working age member of the couple is the Housing Benefit claimant. Housing Systems Briefing 2/2022 seems to suggest that the older member of the couple needs to be the main claimant of Housing Benefit. I can’t seem to find anything in the regulations that would support this. Is this correct?

Any advice would be appreciated regarding the Pension Credit refusal.
I am already aware that there was an option for the younger member of the couple to claim ESA income-related/change of circumstances but as the case has been ongoing for 12 months now I wanted to explore whether the Pension Credit refusal is an incorrect decision worth pursuing through the dispute process. If Pension Credit are correct in refusing this claim I will complete an ESA3 form and argue for backdated ESA income-related benefit to the date of the Pension Credit claim.

Thanks in advance

This is an unfortunate configuration in terms of transitional protection.  I think the decision is correct.

The starting point is that the SPC Act 2002 was amended from May 2019 to say that there can be no entitlement to SPC if the claimant has a working age partner, but subject to the savings in article 4 of the WRA 2012 No 31 Commencement Order.  The key thing to understand here is that only a pensioner can be personally entitled to SPC: the younger partner in a mixed age couple can never have the SPC claimant role.

Now let’s have a look at Article 4.  It applies to “a member of a mixed-age couple who, on the day before the appointed day and as part of that couple, is entitled to—

(a) state pension credit;
(b) housing benefit; or
(c) state pension credit and housing benefit.”

In this case, Article 4 is satisfied by the younger partner who has been entitled to HB under the HB(SPC) Regs since before the appointed day.  But s/he is too young to claim Pension Credit, so coming within Article 4 doesn’t help him/her.  The older partner, on the other hand, is not personally entitled to either HB or SPC and therefore cannot personally rely on Article 4 to claim SPC.

Thank you for your response. It is as I had feared and I will pursue the ESA income-related claim with backdating for the younger person of this couple.