Forced migration Mixed Age Couple

I have a MAC: he reached Pension Age in 2020, she remains under pension age and claims ESA Conts based (as an aside they have a disabled child and tax credits and both receive high rate PIP elements for themselves.)  In 2023, the Housing Benefit Team advised that his reaching Pension Age should have forced a move to UC.  The couple argued this unsuccessfully.  HB stated that the system missed this change, and allowed the claim to remain ‘paid’ up until 2023 when they realised (no reclaim, no overpayment) but they ended the claim.  The family have refused to claim UC which is fine but the guidance suggests they don’t need to (which i assume is why the system never threw it up.)  I have asked HB again citing the below BUT the response is that Conts based benefits arent a passporting benefit/protected and the rules don’t apply.  My argument is that it isnt about IR/IB in this case - she is the lead claimant and her circs havent change - their income has, by all means do a re-calc on their income now he has a pension, but she is the lead claimant and continues to claim the benefit their claim is based on. 
Do i have a case to continue an argument and how!

A9/2019 Mixed age couples: further guidance (revised) - GOV.UK (http://www.gov.uk): particularly Annex A:
Mixed age couple in receipt of HB and other DWP legacy benefit – younger member of the couple is lead claimant of the legacy benefit
Where a working age couple who are in receipt of a DWP legacy benefit and working age HB and the older member of the couple is approaching state pension age but the younger member of the couple is the lead claimant on the DWP legacy benefit claim, the mixed age couple will remain on the legacy benefits that they are currently entitled to. The mixed age couple will continue to receive working age HB until the younger member of the mixed age couple reaches State Pension age or is no longer in receipt of the DWP legacy benefit.

the important question is -
is she on new style ESA or old style ESA
if old style ESA and used to also get top up of income related ESA
if this ended as partner’s state pension + conts based ESA wipes out any remaining IRESA top up then HB correct to end
younger needs some IRESA to keep HB in payment once became a mixed age couple.
if there was a carer premium included or SDP then this would probably take them onto IRESA (if just getting full SP and no other occ pensions)

do they not qualify for SDPs?

It is very much old style ESA - they both transitioned from Incapacity Benefits c 2013/14.  They had all the disability premiums due to both having both elements of enhanced DLA and PIP but possibly neither registered as the other’s (or child’s) carer…  she continued to receive Conts ESA with Support Related component when his SP started and yes, he received just a basic SRP.

HB is supposed to terminate when the older member of a working age couple becomes a pensioner and the couple “ages into” mixed age status.  There is a question about whether the legislation successfully schieves this, but let’s assume for a moment that it does.

Even if the legislation does successfully terminate HB in such cases, there are exceptions:

- when the HB award would not be governed by the HB(SPC) Regs, which in turn means that the younger partner is entitled to a legacy DWP means tested benefit such as ESA(ir) when the older partner becomes a pensioner;
- if the older partner became a pensioner between January 2019 and January 2021, as in this case, and either member of the couple was entitled to HB or a legacy benefit including an SDP within the month before they became a mixed age couple

My theory is that the older partner was on ESA(ir) which terminated when he became a pensioner, and the younger partner has never topped up her ESA(c) with ESA(ir) which (subject to the amount of pension income) she could still do.  HB correctly did not terminate in 2020 because of the SDP rule I mentioned above, and the Council forgot about that when they picked the case up in 2023.  They should have left HB in payment ... but here is where it gets messy:

- as it appears they were not in receipt of ESA(ir) from 2020 onwards, a quirk of drafting in Article 8 of the WRA 2012 No 31 Commencement Order means they should have had a working age HB applicable amount.  With pension and ESA(c) as income they possibly wouldn’t receive full HB (but then with double SDPs they might).  I have often wondered whether there had ever been a single case where that actually happened, well here’s one
- but if ESA(ir) can be awarded now (and maybe backdated to 2020 if you’re lucky) they should get full HB for sure.

as above add IRESA on to her conts based backdated to 2020, and then appeal HB closure.

Thank you all.  Quite honestly HB at any rate would be satisfactory, and i think with the SDP premiums even with SRP and ESAconts and CTC we’d still get something.  As is, their outright refusal to claim UC means they get nothing in the way of help with housing costs from anywhere.