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Mixed age couple and housing benefit from 15th May

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Paul_Treloar_AgeUK
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Rebecca Lough - 17 April 2019 09:00 AM

At the risk of looking a bit thick, this is what I understand:

- In a scenario where the qualifying benefit for the HB is pension credit, it is not a problem if the working age person is the claimant

Therefore in the scenario I mentioned, as long as they claim PC before 13/8 (having been entitled since 14/5), then they will be protected and their HB is SPC HB because older person gets PC.

If this were a couple where there wasn’t current PC entitlement (perhaps due to working age partner’s c-ESA) then the older person has to be the HB claimant to allow them to later claim PC once they’re entitled but the fact that they claim HB by 14/5 does protect them beyond the August date.

Yes (I think).

Just to add on your bit thick comment, I’ve never found myself feeling so unconfident when advising people as I am currently with this mess for mixed-age couples and often with UC more generally. I’ve started to doubt things that I thought that I knew and particularly, working backwards through Commencement Orders to understand who can and can’t claim what is incredibly difficult I find.

[ Edited: 17 Apr 2019 at 09:14 am by Paul_Treloar_AgeUK ]
Charles
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Rebecca Lough - 17 April 2019 09:00 AM

EDIT: Spoken to a colleague and from an HB point of view, it is understood as a pensioner HB claim as long as the passporting benefit is not a working age benefit. E.g. mixed age couple where there’s no PC entitlement, older person receives SP and OP and younger partner is the HB claimant, but does not receive income themselves are protected because it is not a working age passported benefit.

I don’t agree with this.

PC and HB are both claimed by a single individual, albeit with higher entitlement if they have a partner.
Therefore, for the savings to apply, it has to be the older member of the couple who is the HB claimant, as s/he is the one who will be seeking to claim PC.

There is a FURTHER condition, that the HB award has to be using the pension-age rules.

However, if the younger member of the couple is the HB claimant, it will not be enough that it is an award of HB using the pension-age rules.

Backdating PC to 14/5 works, not because it converts the HB award to be made using the pension-age rules, but because PC itself is a reason for the saving to apply.

Andrew Dutton
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I am trying to understand all this and I too feel ‘a bit thick’ and my head hurts too. I shall once again borrow my friend’s pet word: “Gad!!!!”

Rebecca Lough
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Me again.

In process of untangling mixed age couple scenarios. In terms of PC being able to be backdated… does a working age benefit in payment mean they are not entitled and therefore cannot make a claim?

I thinking for example of mixed age couple where the younger one gets ESA and is found fit for work on 17th July. They were receiving couple rate ESA before and including 15th May so can they make a PC claim or does the ESA entitlement preclude it?

Thank you

Charles
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Rebecca Lough - 30 April 2019 12:36 PM

Me again.

In process of untangling mixed age couple scenarios. In terms of PC being able to be backdated… does a working age benefit in payment mean they are not entitled and therefore cannot make a claim?

I thinking for example of mixed age couple where the younger one gets ESA and is found fit for work on 17th July. They were receiving couple rate ESA before and including 15th May so can they make a PC claim or does the ESA entitlement preclude it?

Thank you

I actually find this a very interesting question.

1. Technically, it is not a condition of entitlement to PC that the partner is not entitled to ESA, so nothing should stop the PC award being backdated.
(Of course, the ESA award will then be terminated as of that earlier date, as entitlement to PC does preclude entitlement to ESA.)

2. However, at the point that DWP are deciding the PC claim for the backdated period, the claimant had the ESA income during that period - it only disappears if the claim is allowed.
This would bring his/her income up to a level at which there is no entitlement to PC, so an award of PC cannot be made.

3. On the other hand, the condition of entitlement to PC is having an “income which does not exceed the appropriate minimum guarantee” (SPCA, s2(1)). Even including the ESA income, it will only equal precisely the appropriate minimum guarantee, and not exceed it.
Section 4(3) does allow for no PC to be “payable” when entitlement is less than a prescribed amount, but does not remove entitlement.
If there is entitlement, the ESA income disappears, and the PC will now be payable too.

What do other people think?

Paul_Treloar_AgeUK
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Charles - 01 May 2019 10:41 AM

I actually find this a very interesting question.

1. Technically, it is not a condition of entitlement to PC that the partner is not entitled to ESA, so nothing should stop the PC award being backdated.
(Of course, the ESA award will then be terminated as of that earlier date, as entitlement to PC does preclude entitlement to ESA.)

2. However, at the point that DWP are deciding the PC claim for the backdated period, the claimant had the ESA income during that period - it only disappears if the claim is allowed.
This would bring his/her income up to a level at which there is no entitlement to PC, so an award of PC cannot be made.

3. On the other hand, the condition of entitlement to PC is having an “income which does not exceed the appropriate minimum guarantee” (SPCA, s2(1)). Even including the ESA income, it will only equal precisely the appropriate minimum guarantee, and not exceed it.
Section 4(3) does allow for no PC to be “payable” when entitlement is less than a prescribed amount, but does not remove entitlement.
If there is entitlement, the ESA income disappears, and the PC will now be payable too.

What do other people think?

I think that’s an attactive argument Charles.

On your point about the effect of section 4, you can contrast the provisions of sec.4(1) which removes “entitlement” where the other member of the couple is claiming PC, to sec.4(3) which as you note states that PC shall not be “payable” as does reg.13 of the SPC regs

The potential fly in the ointment may be based on some of the decisions discussed in Sweet and Maxwell volume 2 underneath reg.6 of the SPC Regs 2002. These deal with the effect of the MIG being set at nil for people maintained in religious orders. The overall effect is the same, that is, no PC is payable but in the one decision I could locate, the Judges do say the effect of this is that there is no entitlement to PC as a result. Effectively, they have nil income and nil MIG so on your argument, they would be entitled to PC but not paid anything.

However, as you note, the State Pension Credit Act 2002 really couldn’t be any clearer:

sec.1(2) A claimant is entitled to state pension credit if-
(a) he is in Great Britain
(b) he has attained the qualifying age; and
(c) he satisfies (i) the conditions in section 2(1) (guarantee credit)

sec.2(1) The conditions mentioned in section 1(2)(c)(i) is that the claimant-
(a) has no income; or
(b) has income which does not exceed the appropriate minimum guarantee.

And that’s it. The entitlement is sorted and all that remains is to calculate the amount. The amount of PC payable on 14 May 2019 was nil up to and including 17 July in Rebecca’‘s example but from 18 July, PC does become payable from that point. Have a nasty feeling this might be tested in due course….

Tina M
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I may have missed this in the earlier discussions, but I’m trying to clarify the backdating rules.  DMG 01/19 says that mixed-age couples who were entitled to but had not claimed PC before 15th May have until 13th August to claim.  However it makes no mention of the rights of a mixed-age couple who is not entitled to PC but is entitled to HB to have their HB backdated for up to 3 months. 

The Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 reg 64 allow the backdating so will these regs still apply?

Charles
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Yes. See para 10 here.

Beware though that if you are swapping claimant (rather than making a fresh claim), then it has to be done by today.

Andrew Dutton
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Backdated claims
10. The normal rules on the 3 month time limit for claiming pension age Housing Benefit will apply. This means that claims made on or before 13 August 2019 can be backdated to before the rule change applies, provided the claimant meets the entitlement conditions applicable on the earlier date.

HB Circular A3/2019

WillH
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Paul_Treloar_AgeUK - 01 May 2019 12:17 PM
Charles - 01 May 2019 10:41 AM

I actually find this a very interesting question.

1. Technically, it is not a condition of entitlement to PC that the partner is not entitled to ESA, so nothing should stop the PC award being backdated.
(Of course, the ESA award will then be terminated as of that earlier date, as entitlement to PC does preclude entitlement to ESA.)

2. However, at the point that DWP are deciding the PC claim for the backdated period, the claimant had the ESA income during that period - it only disappears if the claim is allowed.
This would bring his/her income up to a level at which there is no entitlement to PC, so an award of PC cannot be made.

3. On the other hand, the condition of entitlement to PC is having an “income which does not exceed the appropriate minimum guarantee” (SPCA, s2(1)). Even including the ESA income, it will only equal precisely the appropriate minimum guarantee, and not exceed it.
Section 4(3) does allow for no PC to be “payable” when entitlement is less than a prescribed amount, but does not remove entitlement.
If there is entitlement, the ESA income disappears, and the PC will now be payable too.

What do other people think?

I think that’s an attactive argument Charles.

On your point about the effect of section 4, you can contrast the provisions of sec.4(1) which removes “entitlement” where the other member of the couple is claiming PC, to sec.4(3) which as you note states that PC shall not be “payable” as does reg.13 of the SPC regs

The potential fly in the ointment may be based on some of the decisions discussed in Sweet and Maxwell volume 2 underneath reg.6 of the SPC Regs 2002. These deal with the effect of the MIG being set at nil for people maintained in religious orders. The overall effect is the same, that is, no PC is payable but in the one decision I could locate, the Judges do say the effect of this is that there is no entitlement to PC as a result. Effectively, they have nil income and nil MIG so on your argument, they would be entitled to PC but not paid anything.

However, as you note, the State Pension Credit Act 2002 really couldn’t be any clearer:

sec.1(2) A claimant is entitled to state pension credit if-
(a) he is in Great Britain
(b) he has attained the qualifying age; and
(c) he satisfies (i) the conditions in section 2(1) (guarantee credit)

sec.2(1) The conditions mentioned in section 1(2)(c)(i) is that the claimant-
(a) has no income; or
(b) has income which does not exceed the appropriate minimum guarantee.

And that’s it. The entitlement is sorted and all that remains is to calculate the amount. The amount of PC payable on 14 May 2019 was nil up to and including 17 July in Rebecca’‘s example but from 18 July, PC does become payable from that point. Have a nasty feeling this might be tested in due course….

Are there any updates on this problem? Have a case with this exact issue except IS was in payment, meaning amount of PC payable would be nil from 14th May up until a later date (all before 13th August obviously). Wondering if I might have missed an amendment or failing that any guidance which covers it.

Paul_Treloar_AgeUK
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WillH - 07 August 2019 02:33 PM

Are there any updates on this problem? Have a case with this exact issue except IS was in payment, meaning amount of PC payable would be nil from 14th May up until a later date (all before 13th August obviously). Wondering if I might have missed an amendment or failing that any guidance which covers it.

Yes, we’ve got a horrendous case that’s dragged on since April when client claimed PC whilst also claiming ESA at that time.

ESA section wouldn’t close ir-ESA award without also closing c-ESA award which client didn’t want to do, to the point that they persuaded her to withdraw PC claim. We’re arguing she didn’t properly withdraw PC claim as it was erroneous advice from DWP that led her to do this and if they do reopen original PC claim, we will have exactly same issue.

We’re also hearing a lot of reports of MAC’s being denied ability to make claim through telephone helpline, despite window to 13.08.19 - it’s a mess quite frankly.

WillH
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Thanks Paul. I just wondered whether there’s been any acknowledgement of this particular issue from DWP. It certainly is a completely mess.

My case has some extra complications too. For time being just going to see what happens with the PC claim, but may well need to take things further.