Mixed age couple, SDP gateway and PC

Sorry if this has been covered elsewhere or should have been put in a different forum.

My clients are aged 61 and 66.  The 66yr old will reach SRP age in July 2020.  He is currently getting CESA and PIP.  She is getting WTC and CA for him.  They both get HB which includes an SDP.

He will be moved off CESA to SRP - is it correct that the SDP gateway prevents a UC claim from being made?  I think so, but I wanted to double check that they then have the option of claiming Pension Credit?

EKS

Are you sure about SDP?  Is the younger working partner/carer also on PIP(dl) or DLA(c)?

Hi - no the younger partner not getting an disability benefit nor eligible for it. 

Assumed there would be a SDP underlying entitlement as part of the HB?  Waiting to see the award letter.

No, there is no SDP unless they both get PIP etc.

Ah right - thanks.

Another issue has come up in relation to this case:-

I had thought that because they were in receipt of HB as of 14/05/19, that meant that their HB claim could continue. 

Is it correct that it had to be pension age HB that they were entitled to?

Am looking at https://www.gov.uk/government/publications/housing-benefit-adjudication-circulars-2019/a32018-mixed-age-couples-changes-to-entitlement-conditions-from-15-may-2019

The couple have been in receipt of HB as a couple, him on CESA, her on WTC and CA for years.

He gets to SRP age in July.

Is there working age HB going to be terminated and if so, is there only option to claim UC?  This has a bearing on her WTC award.

I also need to be clear - if they are allowed to continue on HB, are they going to get pension age HB?

EKS

They were claiming HB on 14.05.19 but the older partner first reaches SPA in July 2020?

In that case, yes the HB award stops then and they need to claim UC instead. It’s farcical and so unnecessary.

I believe Peter and Charles think the HB termination decision might be open to challenge.

Thanks so much Paul, that’s really helpful as always.  I had thought you said as much at the last CPAG conference. 

The couple are really vulnerable and have already been through a lot in terms of benefit mess ups so the move over to UC … I dread to think how this is going to affect them.

And Pension Credit obviously completely out.

Peter/Charles - I don’t suppose you could provide more info on challenges to HB terminations?  The reality of the situation is that the couple wont be able to not claim UC in order to cover living and rental costs.

Hi

The argument is based on a very close reading of article 6 of the WRA 2012 No 31 Commencement Order.  Arguably it doesn’t achieve what it is intended to achieve when a working age couple “ages into” mixed age status since may last year.  Here is the relevant extract

6.—(1) The awards of housing benefit referred to in paragraph (2) are to terminate …

(2) The awards are those where entitlement under the Housing Benefit SPC Regulations as part of a mixed-age couple begins on or after the appointed day and where the awards are made—
...
(b) at any time, under the Housing Benefit Regulations 2006, to a person who is a member of a mixed-age couple, where the award subsequently ceases to be subject to those Regulations and becomes subject to the Housing Benefit SPC Regulations;

You could read that as only applying in a case where the award was first made to a person who was already a member of a mixed age couple at the commencement of the award, but still subject to the working age regs because either s/he or his/her partner was on a means tested working age benefit.  Para (2) would kick in and terminate HB if the award subsequently becomes subject to the HB(SPC) Regs because the working age benefit ends (because the working age HB regs only apply to mixed age couples where one of them is on working age DWP benefit).

DWP’s view would be that para (2) applies when any HB claim migrates from the working age to the SPC age HB Regs at any time from may 2019 onwards for any reason, including “ageing into” mixed age status.  But it does seem arguable that it has been worded much more narrowly than that.  As far as I am aware, all local authorities are following the DWP line on this so it will need someone to pursue an appeal in order to test the argument - you won’t get it accepted at LA level.  That makes it difficult to find someone to take the issue forward - you need someone with reasonable pension entitlement who doesn’t want or need to claim UC but for whom the loss of HB is still a significant matter and worth pursuing.

HB Anorak - 12 May 2020 12:53 PM

As far as I am aware, all local authorities are following the DWP line on this so it will need someone to pursue an appeal in order to test the argument - you won’t get it accepted at LA level.  That makes it difficult to find someone to take the issue forward - you need someone with reasonable pension entitlement who doesn’t want or need to claim UC but for whom the loss of HB is still a significant matter and worth pursuing.

I suppose there is noting to stop someone appealing the HB termination at the same time as claiming UC to cover the rent? If someone did appeal and this was allowed, where would that leave us? The decision to stop the HB award was erroneous in law and should have been converted to pension-age HB award, could you argue this means the UC claim was made in error?

Alternatively and even better, the client appeals to FtT and loses and then appeal goes to UT? What then?

Problem with the riding-two-horses tactic is that making a claim for UC is a separate and additional reason for HB to terminate, irrespective of being a mixed age couple.  These people can claim UC if they want, there is nothing to stop them.  if they do, HB would terminate as it would for anyone who claims UC.

HB Anorak - 12 May 2020 02:28 PM

Problem with the riding-two-horses tactic is that making a claim for UC is a separate and additional reason for HB to terminate, irrespective of being a mixed age couple.  These people can claim UC if they want, there is nothing to stop them.  if they do, HB would terminate as it would for anyone who claims UC.

But isn’t there an argument that their hand is being forced by the LA writing to them to tell them the HB award is being closed down and that they must claim UC instead? What else can they do?

Particularly in light of the judgment here about the CPAG test case. Different set-up granted but very similar circumstances.

See what you mean:

- protective UC claim in case DWP’s interpretation is upheld when the dust settles
- meanwhile argue that HB should not have terminated independently under Article 6(2)
- the UC claim was made under duress and should not have been necessary
- this justifies the court turning back the clock by analogy with the case referred to above, so that it is as if the UC claim was never made, and therefore HB does not terminate for that reason either

That’s a safer option than simply foregoing any means tested assistance while disputing the HB termination

Yes, that’s a good distillation of my muddled brain Peter. Maybe Emma’s client could try to run the argument?

Guys - thank you so much for going through all this as I was wondering the same, particularly given [2020] EWCA Civ 618.

I will put it to my client and let you all know if she wants to go down the appeal road.

Thanks again.