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Mixed-age couple: too late to claim SPC?
Was 15/8/19 the last date on which a mixed-age couple (MAC) could claim SPC instead of UC? The Pension Service apparently say so and so do contributors to other threads but I can’t see why that is right in all cases.
We have a MAC. She is 70, he is 63. As at 14/5/19 she was getting SRP and he was getting CBJSA. Together they got HB but no other means-tested benefits. So they meet one of the criteria which excludes the restriction on MACs claiming SPC - the fact that they were entitled to HB on 14/5/19 and received no other means-tested benefits. His CBJSA ran out in July and DWP advised UC the only option. That advice must have been wrong. They claimed UC and so may have problems getting back to legacy benefits but leaving that aside the Pension Service say that it is now too late to claim SPC. But as I read the combination of article 4 of the commencement order and reg 19 of the C&P Regs all it means is that they can’t get a SPC claim backdated to 15/5/19, only to 3 months before the claim is made. They couldn’t have made a claim before July anyway because of his CBJSA.
Have I missed something?
[ Edited: 24 Aug 2019 at 02:31 pm by Paul Stockton ]I think this may depend on who is the housing benefit claimant. If the older member is the claimant then the HB will be under pension age rules and the savings provisions apply and a claim for SPC should be permissible. If the younger member is the HB claimant then it is not under pension age rules and the savings provision does not apply.
There are other regular posters who understand this much better than me who may post after the weekend.
Was 15/8/19 the last date on which a mixed-age couple (MAC) could claim SPC instead of UC? The Pension Service apparently say so and so do contributors to other threads but I can’t see why that is right in all cases.
We have a MAC. She is 70, he is 63. As at 14/5/19 she was getting SRP and he was getting CBJSA. Together they got HB but no other means-tested benefits. So they meet one of the criteria which excludes the restriction on MACs claiming SPC - the fact that they were entitled to HB on 14/5/19 and received no other means-tested benefits. His CBJSA ran out in July and DWP advised UC the only option. That advice must have been wrong. They claimed UC and so may have problems getting back to legacy benefits but leaving that aside the Pension Service say that it is now too late to claim SPC. But as I read the combination of article 4 of the commencement order and reg 19 of the C&P Regs all it means is that they can’t get a SPC claim backdated to 15/5/19, only to 3 months before the claim is made. They couldn’t have made a claim before July anyway because of his CBJSA.
Have I missed something?
I think this may depend on who is the housing benefit claimant. If the older member is the claimant then the HB will be under pension age rules and the savings provisions apply and a claim for SPC should be permissible. If the younger member is the HB claimant then it is not under pension age rules and the savings provision does not apply.
Even if the younger member was the claimant, it would have still come under the pension age regs.
However, it does still depend on which member of the couple was the HB claimant. If the younger member of the couple was the claimant, the savings provisions only apply to them, and they obviously cannot make the claim for SPC.
Was there actually entitlement to UC? Has the first AP already ended?
If the answer to either question is ‘no’, and assuming the older member of the couple was the HB claimant, then your clients could still get the SPC and HB back despite the bad advice.
Thanks for clarifying, Charles. I was hoping you would comment. Appears I got the consequences right but not the legislative causation! Am still struggling to get my head around the way these MAC provisions work..
Thanks to both of you
Even if the younger member was the claimant, it would have still come under the pension age regs.
However, it does still depend on which member of the couple was the HB claimant. If the younger member of the couple was the claimant, the savings provisions only apply to them, and they obviously cannot make the claim for SPC.
Was there actually entitlement to UC? Has the first AP already ended?
If the answer to either question is ‘no’, and assuming the older member of the couple was the HB claimant, then your clients could still get the SPC and HB back despite the bad advice.
That’s not my understanding. I thought that the existence of c-JSA in that scenario ‘passported’ the HB to working age regs, regardless of who the claimant is. My understanding is that in order to be pensioner HB, they would have had to have no c-JSA, and the older person being the claimant. However, whether DWP are being that stringent in checking when people try to claim… Also very happy to be corrected on the point above because mixed age couples baffle me.
That’s not my understanding. I thought that the existence of c-JSA in that scenario ‘passported’ the HB to working age regs, regardless of who the claimant is. My understanding is that in order to be pensioner HB, they would have had to have no c-JSA, and the older person being the claimant. However, whether DWP are being that stringent in checking when people try to claim… Also very happy to be corrected on the point above because mixed age couples baffle me.
I do not believe this is correct. Only ib-JSA has this effect. Either way, it never depends on which one is the claimant. See for example reg 5(1)(b) and (3) here.
I think this may depend on who is the housing benefit claimant. If the older member is the claimant then the HB will be under pension age rules and the savings provisions apply and a claim for SPC should be permissible. If the younger member is the HB claimant then it is not under pension age rules and the savings provision does not apply.
Even if the younger member was the claimant, it would have still come under the pension age regs.
I’m having trouble understanding this. I thought Reg 5 of the working age HB Regs meant that in a MAC, the under-age person could always claim (Reg 5(1)(a)), but the over-age person could only claim if one of them was getting IS, etc. (Reg 5(1)(b)). Then Reg 5(3) just says that in any other case (i.e. one that isn’t covered by Reg 5(1)), a person can’t claim if they or their partner is over-age.
I have my first MAC since May. They are getting a very small amount of HB (claim continuous for about six years). Under-age is working. Over-age is AA, SRP, and a small amount of additional pension. If the under-age stopped working, there would be GPC entitlement if they can claim. But I don’t think they can, can they?
I had exactly the same question some time ago. I even went further: if you look at the equivalent reg 5 of the pension-age regs, they do not seem to include MACs when the younger one is the claimant. I thought this was proof that I was correct!
I asked Peter Barker (HB Anorak) about this, so this is basically what he explained to me. The first thing to realise is that it has always been practice (before these regs were made, and since) to treat such claims as pension-age claims. Reg 5(3) of the working-age regs must only be referring to the positive mention in para (1) of someone having reached pension-age (ie subpara (b)). The pension-age regs must somehow mean to include all MACs, regardless of who the claimant is, in the generality of its reg 5(1).
It would be illogical for such cases not to come within the pension-age regs. It would also mean that receipt of SPC would not passport them to full HB in such cases, which is definitely not correct.
We then discovered that the equivalent reg 5(3) in the Council Tax Benefit Regs (S.I. 2006/215) (made at the same time and with the same structure) clearly refers only to para (1)(b), and not to para (1) in its entirety. That really clinched it for me. There was obviously some sloppy drafting in the HB Regs.
Coming to your case regarding a fresh claim for SPC: despite the above, they will still not be able to claim SPC, as the savings require the SPC claimant to be the one entitled to HB.
[ Edited: 2 Oct 2019 at 02:25 pm by Charles ]I see what you mean about the CT Regs, although you could perhaps argue that this proves that the difference is deliberate. Surely, if it was a mistake it would have been corrected by amendment over the intervening 13 years?
I can only make sense of this by reading 5(1)(a) as applying exclusively to single claimants - it is the only one of the paragraphs not to mention partners. This then means that it can’t be an exception under 5(3).
If you read it how I was reading it before, 5(3) is very strange as it seems to be saying that if you are the younger partner in a MAC you can’t claim working age HB unless you are under SPA (which you definitely are).
Anyway, I have the answer for my clients; if they want to claim anything it will have to be UC.
I see what you mean about the CT Regs, although you could perhaps argue that this proves that the difference is deliberate. Surely, if it was a mistake it would have been corrected by amendment over the intervening 13 years?
The idea was for CTB and HB to have exactly the same structure, so I think it’s unlikely to be deliberate. And I wouldn’t be surprised for a mistake to last that long!
I can only make sense of this by reading 5(1)(a) as applying exclusively to single claimants - it is the only one of the paragraphs not to mention partners. This then means that it can’t be an exception under 5(3).
I don’t think it’s so terrible to interpret it the way I said in my earlier post. That is, that reg 5(3) is saying that the only cases in which pension-age people can get working-age HB are pension-age people mentioned in para (1) (and originally para (2) as well). As para (1)(a) does not explicitly discuss pension-age people, that is not included.
I do agree it’s not how I would automatically interpret it though.
IAnyway, I have the answer for my clients; if they want to claim anything it will have to be UC.
Sorry if I’m being dense here but you don’t appear to have said which partner is claiming HB? As there are no legacy benefits at issue, if the older person is claiming HB, surely they are covered by the savings provisions?
I don’t think it’s so terrible to interpret it the way I said in my earlier post. That is, that reg 5(3) is saying that the only cases in which pension-age people can get working-age HB are pension-age people mentioned in para (1) (and originally para (2) as well). As para (1)(a) does not explicitly discuss pension-age people, that is not included.
I do agree it’s not how I would automatically interpret it though.
I agree it’s not terrible, just tricky. I keep reading it and thinking it works that way, and then rereading it and thinking it doesn’t. I think it’s because the exception comes before the main clause, so you need to read ahead and hold the main clause in your mind before you look at the exception. It’s like a literary version of one of those magic pictures where you have to get your eyes slightly out of focus.
I suppose the reality is that it is a mistake (I was only joking about arguing that a mistake would have been corrected by now) and so it needs to be read like the CT Regs instead. I just wouldn’t want to have to argue this before a judge.
IAnyway, I have the answer for my clients; if they want to claim anything it will have to be UC.
Sorry if I’m being dense here but you don’t appear to have said which partner is claiming HB? As there are no legacy benefits at issue, if the older person is claiming HB, surely they are covered by the savings provisions?
You are quite right. I didn’t say the younger person was the HB claimant. However, Charles guessed correctly (or is psychic) so it’s all in order.
Not psychic! You had written “But I don’t think they can [claim SPC], can they?” after saying that you think a mixed-age couple claiming HB with the younger one as claimant should come under the working-age regs.