Anomaly in conts ESA cases thrown up by removal of WRAC?

Client on ESA-C, in WRAG, 365 days have ended so has a nil award. Claim started before April and indeed payment of ESA-C ceased before April. She receives a private pension so is overscale for ESAir (until we secure PIP, anyway!) therefore no ESA-C in payment (credits only claim).

HB say that she cannot have WRAC in her HB calc, because the amendments to HB Regs only allow a WRAG component where payment has ceased through expiry of ESA-C if they are a transfer from IB.  In S.I.204/2017 the Explanatory Note says that changes
“do not apply in the following circumstances. The circumstances are – 
(a) where the claim for employment and support allowance was made before 3rd April 2017 and that claim results in an award;”

and HB have interpreted that ‘award’ means that a claim is actually in payment. I’m thinking this can’t have been Parliament’s intent to exclude this group of people, so is this an accidental anomaly?
Or (in my own view) could my client still get ESA WRAC in their HB applicable amount as they have an ESA award, just that it is not in payment?

I had this a while ago.  Eventually persuaded HB that the client is still in the WRAG and therefore entitled to the WRAC.  May be worth pointing out to them that this approach would cause overpayments, as well as underpayments, as they may award the disability premium if a client was on DLA/PIP instead of WRAC.  I certainly don’t think that was parliament’s intention!

Thanks Helen - this has already caused an overpayment - HB have written it off in my client’s case as LA error.

Did your LA also think the problem was that there was no ‘award’ as ESA was not actually in payment? I think I need to ask for a revision but I’m struggling a bit how to frame it.

I think you’d just have to ask for recon/appeal of the decision on the grounds that WRAC not included.  I actually raised the issue with our HB liaison and had a very odd conversation with a HB Officer who started off by saying that the WRAC couldn’t be included, but then changed her mind and said that the WRAC couldn’t be included unless we sent in a letter from ESA confirming credits only award - but that’s a whole different story!

My argument would be that the savings provision contemplates a one-off snapshot: at the point when the pre-April 2017 claim was decided, did it result in an award?  If so, the component is protected for as long as the claimant continues to satisfy the conditions in the pre-April 2017 version of the HB Regs.  In simple terms, for as long as s/he has LCW.

If the intention had been to limit the savings provision to cases where the claimant is currently entitled to some ESA as at 3 April 2017, it would have been easy enough to say that.  The reference to the ESA claim suggests a focus on events at the time of the claim and resulting decision, rather than ESA entitlement going forward.