Couple on IR-ESA moving in together: No need to claim UC?

I’m going around in circles second guessing myself on this one (I blame it being Monday morning and only just being a Full Service area!).

We have a client who is on ir-ESA (WRAG and in payment), IIDB and PIP (Enhanced DL and Standard Mob) and is planning on moving in with their partner in the partners Housing Association property. The partner claims ir-ESA (WRAG in payment), HB and CTR. There’s no children, non-deps or anything else. Just the two of them moving in together.

I’m quite content crunching the numbers on who should give up which ESA claim (I don’t think there is any need to change claimant for HB) but I just want to check that whoever phones up to say “I have a partner now” won’t then trigger a claim for UC. I don’t think it will as surely it’s a change of circumstances that wouldn’t normally lead to a fresh claim for legacy benefits (another reason not to change the HB claimant!) but now I’m second guessing myself.

I’d really like to find some reference in CPAG or the legislation to hang my hat on!

You are right - in particular ESA(ir) only has one claimant so this will be a change of circumstance for the person who remains on ESA.  Difficult to cite legislation providing for this - it’s more an absence of anything to say ESA does end.  It’s not like UC and Tax Credits where newly formed couples have to make a new claim as a couple.

The HB claimant cannot change even if you wanted that: the incoming partner would not be able to make a new HB claim. Therefore the HB claim must stay with the existing claimant.

The legal framework around UC is:

- either or both of them may, if they wish, make a claim for UC by virtue of the local commencement order (eg No 24 Order) as modified for full service by a subsequent modification order, of which there have been three this year.  This couple do not wish to claim UC, so they just don’t
- neither of them may claim HB even if they wanted to, by virtue of Article 7 of the No 23 Order.

One thing to bear in mind: you haven’t said they are both on PIP(dl) so no SDP I take it?  In that case, if either of them were to move into the Support group then that would be a time to think about claiming UC as the UC support component is a bit more than the combined amount of the LCWRA component and couple rate EDP

Thanks for that, glad to see I’m not losing it.

Re:PIP - Yeah only one of them has PIP so no SDPs to consider and a good point regarding the UC Support component.

One other thing to consider is that the person giving up their ESA claim will lose their automatic NI credits. If they need to maintain their NI record they will need to apply for credits on the grounds that they meet the qualifying conditions for ESA (I assume they can still do this even if they are included as the added party on the ongoing claim).

I’m encountering resistantance from ESA to this.
I’m advising support & social workers for a couple, he is on ESA-C with SC and ir top ups of EDP + SDP, she is moving in with him and claims ESAir with SC and EDP. She has claimed PIP and is a shoo-in for ERDL, therefore if they move to UC they stand to lose double SDP.  ESA have told his support worker that he can’t do a COC and add her to his claim, it has to be a new UC claim. Not having something specific to point to in terms of why this should not be a new UC claim is making it hard to go back and say - yes he can, just send us an ESA3. As she has lived there for about 3 weeks they are both being overpaid while they continue to receive their own single ESA claims, both are significantly learning disabled and are unable to manage their claims independently.

16 January is the target for the new Regs, isn’t it? This can’t come around soon enough for these clients.

Perhaps a good set of questions to put to them would be this:

Q1 - imagine it is two years ago and full service UC has no significant presence yet.  A claimant on ESA(ir) reports that s/he now has a partner.  What happens?

Answer should be: ESA is reassessed at couple rate, it’s a change of circumstance, no new claim required

Q2 - let’s make this a bit messier, suppose the partner has also been getting ESA(ir) as a single person?

Answer should be: ESA(ir) will have to end for one of them because of para 6(1)(d) of Schedule 1 to the 2007 Act, and the other will have to be reassessed at couple rate.  Still no new claim required.

Q3 - and if either of the above happens today, why should the outcome be any different?  Oh by the way, neither of them has any intention of claiming UC, just saying.  So is there any reason why you deal with this change of circs any differently compared with 2 years ago?

Probably answer: well they could claim UC instead now

Q4 - I just told you, they dont want to.  Why should they need to claim anything?  They are already on ESA(ir) and HB, they don’t need to be making any new claims.

bristol_1 - 08 January 2019 12:42 PM

As she has lived there for about 3 weeks they are both being overpaid while they continue to receive their own single ESA claims, both are significantly learning disabled and are unable to manage their claims independently.

If possible, it should be worth examining whether these overpayments should be unrecoverable, i.e. they should keep hold of the evidence that they haven’t failed to disclose the relevant facts.