Income Support Appeal - claiming whilst awaiting appeal

Our client has had her income support stopped due to JCP deciding that her friend who lives with her is to be treated as her partner. Her friend was in receipt of ESA (IR), which has now also been stopped, they have been given the option of claiming as a couple which we have appealed as the friend lives there due to having social anxiety and needing support from our client.
Our client also has her three children living with her, one of her children gets DLA and she is claiming Carers Allowance.

As a household they have been left to survive on the Carers Allowance, Child Tax Credits, DLA and Child Benefits and have been told she cannot put in another claim for income support or her friend a claim for ESA, they have been told that the only thing they can do is claim Jobseekers Allowance as a couple, this seems absurd as neither is available for work due to either having young children or being medically unable? They have also been told they can’t claim any crisis loans as not in receipt of appropriate benefits.

The appeal is not being heard until 1st November 2011 and I would appreciate all any advice on what they can claim in the interim as they are struggling to cope on this income and as they are in temporary accommodation they have service charges to pay that are not covered by housing benefits and this is therefore on the verge of making them homeless again.

Also any advice on where they stand with Income support deciding to treat them as a couple in the household in preparation for the appeal would be brilliant.

There is nothing to prevent them from claiming benefit as a couple ‘under protest’ whilst your client waits for her appeal to be heard (the joint claim will not prejudice the ongoing appeal). They don’t have to claim JSA either. They have a choice- either your client continues to claim IS as a carer (with her friend included on the claim as her partner) or her friend continues to claim IR ESA (with your client on the claim as his partner).

As to preparing case for the appeal… if you have the CPAG handbook see pageds 723-728 for a comprehensive summary of the issues relating to cohab decisions. You need to consider the whole picture. A sexual relationship (or the lack of it) is only one factor.

It would probably be helpful if your client’s friend can obtain evidence of his mental health problems and resuling need for support (GP, CPN, therapist, etc).

Just checking - i know this wasn’t part of your question sorry - your clients friend has appealed his/her decision on the ESA too havn’t they?

Re whether they will be better off on ESA or IS- Duncan is correct- if there is a route to DP IS would be the better option. However, not clear there would be a route to DP being included anyway (DLA is in payment re one of the children, I think, rather than to client or her friend) in which case it will make no difference financially.

Thank you for your responses, yes they have both appealed the decisions for IS and ESA stopping.

To clarify the two claimants are both female with no reason for anyone to think that they are a couple, but Income support have said that they will be treated as such within the household as they are “co-habiting”. They definitely do not want to make a joint claim as they believe they should be entitled to their benefits separately as although they are living together for mutual benefit as our tenant provides support for her friend with her anxiety and in return her friend helps her with the care of her children as the child with disabilities often requires one on one attention.

I am at a loss what to advise them as they refuse to make any joint claim and as they have been told by the job centre that they can’t put in new claims individually we have come to a standstill and they are at the point of financial crisis.

Do you know what ‘evidence’ the Department is relying on?

They interviewed the income support claimant and questioned her about their living arrangements.

I can’t see what grounds IS had for stopping the claim in the first place.  Your client was claiming IS as a carer and was a single person.  IS are saying a partner moved in with her (which your client disputes), but the partner has no income.  The result of this is surely that your client’s IS should have increased by £38.50 per week ( the difference between the couple and single person personal allowance).  It is a change of circumstances, not a ground to end the award.  Have you pointed this out to IS?

Are you sure you client has an appeal hearing on 1st November?  This seems a long way ahead to list a tribunal hearing.  Is it just the tribunal service standard letter saying they have a large backlog and the case will not be heard before 1st November?

I would contact the tribunal service district judge and ask for the appeal to be expedited to get an early hearing as your client has no money. 

I would also complain to the manager of the local office (possibly via an MP) and point out that your client is not getting paid the money they are clearly entitled to, even based on the IS office’s (disputed) interpretation of the living arrangements.

“They interviewed the income support claimant and questioned her about their living arrangements”.

Then you have to take all the indices of what it means to be sharing a common household and rebut them one by one.  However the situation has to be looked at as a whole.  Even if some indices remain that does not in itself found a common household.  The indices are things that a tribunal should apply its mind to and are not hurdles for the claimant to get over.