SPC from June 18 but pushed on to UC after 15/5/19 - whilst still on SPC

I’ve had the following put to me, and i’d like to see what the general view is of the case:

Client, 43, was living alone in a property with 2 children. She got ESA (we think SG but not 100%), PIP (SR DL & SR Mob), CTC, CB & full HB/CTR.

Her partner, 71, moved in June 2018. He got State pen, LR AA & Guarantee Pen Credit with severe disablement premium.

They added the younger client to the pension credit claim and this included x 2 Severe Disablement. Client says she informed HB and CTC at this point (June 2018)

This April 2019 they got married. She rang CTC to change her name, but probably after 15/5. They said that she only had a single claim and hadn’t informed them when partner moved in. They advised that as she had to make a joint claim, which she could no longer do, she would have to claim UC instead. They have also hit her with an overpayment from when partner moved in.

The couple then made a joint claim for UC which was accepted. HB ended. Guarantee Pension Credit did not end though and has continued to be paid at the same rate.

They have not received any money as their income exceeds the applicable amount on the UC calculation.

Housing Benefit have said that their HB award did not include a SDP as it was a passported GPC and so they were not covered by the SDP gateway.

I’m thinking that no matter what else, they can close the UC and claim for the children on SPC, and that they retain entitlement to pension-age HB under the Savings Provisions.

As for past events, how about a challenge to the TC decision on the basis that the claimant told HMRC what they needed to know but they never acted on it and gave incorrect advice when told about it this year - with a challenge to the overpayment also based upon official error?

Any views on the statement that HB didn’t really have an SDP as they were passported and SDP gateway doesn’t apply?

If their income is too high to receive any UC then they are not actually on UC, and there will be no UC claim to close. It is for this reason the SPC never ended (unlike legacy benefits, SPC only ends if there actually is entitlement to UC - claiming UC is not enough).

If they informed tax credits about the change in June 2018, you could argue that that should have technically counted as a claim which can and should still be decided on. If not, HMRC do have notional entitlement rules in these sort of circumstances, which should remove the overpayment anyway. Going forward, I see no reason why they couldn’t claim for the children on SPC.

About the housing benefit, you are correct that they would be covered by the savings provisions and could make a fresh claim, however, as you hint at, the LA were wrong for closing the HB claim in the first place, as passporting does not remove the existence of the applicable amount.
I vaguely remember seeing some government guidance explicitly mentioning this point, but I can’t find it now. However, examples 1 and 3 here quite clearly mention the existence of an SDP in HB in cases of passporting.

Many thanks, Charles.

Interestingly, I’m told that the UC journals are still open and the younger claimant is being asked to produce fit notes.

Either the claim wasn’t closed as it should have been (as I understand it, the computer system does not simply close claims with nil entitlement, it just creates a to do for the case manager to get it done).

Alternatively, would the claimant be entitled to some UC if the LCWRA element was included? If yes, the UC claim would stay open, because if it turns out they are entitled to the LCWRA element, then even during the waiting period they’re entitled to 1p a month (see reg 28(7)). That would then mean the SPC would have to end. If this is the case, they should certainly close the UC claim immediately*, before LCWRA is decided on. (Although if this is really the case, it should have transferred through from the old-style ESA anyway…)

* Unless you are anyway going to argue against the legality of the UC claim because of the SDP gateway.