Housing Benefit and ESA or Universal Credit?

I have a client with mental health problems who was previously receiving ESA and Housing Benefit but both of these stopped when DWP were informed (by the client) that she started a full time degree course on 17/9/2018.  However, as the client was subsequently awarded PIP, I am wondering if there is any way that we can get ESA and Housing Benefit reinstated, as SDP may have been included in the previous ESA and Housing Benefit awards.  The client is now in the situation where she has overpayments for both ESA and Housing Benefit and advised that her only option is to apply for Universal Credit - she has received a student loan to cover her living costs and her course ends in May 2021.
With regards to the facts of the case they are as follows:
ESA(CB) was initially paid from 27/2/18 - 26/2/19 and this has not been affected.
ESA (IR) was paid from 27/2/19 - 6/4/2020 but was retrospectively closed from 17/9/18 due to starting education but the overpayment was only applied from 27/2/19 (when ESA(IR) replaced ESA(CB), which I believe is correct.
Housing Benefit stopped from 24/9/18 and an overpayment is being recovered from that date due to the client starting full time education.
PIP was awarded from 27/4/2020 - 19/8/2024 standard rates for both components.

My questions are:
1.If PIP was subsequently awarded allowing the client to be in full time education while on ESA/HB and being eligible for SDP, is there any way that she can get her ESA and HB reinstated rather than have to claim Universal Credit?
2.Housing Benefit are recovering the overpayment from the date she began full time education and not taking into account the fact that the client was receiving ESA(IR) from 27/2/19 - this does not seem correct as she would still have been ‘eligible’ for Housing Benefit at that time, albeit they would need to have calculated her award against her student loan amount.  If we cannot get HB reinstated, then should we be challenging the period of the overpayment?

The current situation is that Housing Benefit is at the appeal stage and the request to waiver or write off the overpayments have been refused (for HB and ESA).
ESA has completely stopped and we have been advised to claim Universal Credit and the ESA overpayment is outstanding.

Any suggestions would be much appreciated.

Thanks.

Dave

In relation to ESA, you say that your client was paid until 06/04/20 and PIP was then in payment from 27/04/20. In the course of things, you would expect that decision to be correct. This is because the fact that the claimant became entitled to PIP from some later date doesn’t mean that the decision to end the ESA award was wrong when it was made.

(There is a possible asterisk against this if the decision to terminate ESA was made on or after 27/04/20, in which case there would potentially be scope for this to be dealt with as a closed period supersession. For example if benefit was suspended on 06/04/20 but not actually terminated until 06/05/20).

In relation to HB, I think you are saying that even ignoring everything going on with your client’s ESA and PIP, there ought to have been an ongoing entitlement to HB anyway because your client had LCW for at least six months and continued to have it. See reg 56(2)(ea) HB Regs. So HB should have continued, albeit with deductions for student income. That seems correct to me on the face of it.

As to what your client should do now, if HB were in payment with the SDP included, your advice until 27/01/21 would have been to re-claim ESA which would have been possible due to the SDP gateway. The problem is that this gateway is now closed, so the only option left on the table is UC.

Thank you for the useful information Elliot.
Another couple of bits of information regarding ESA that may be relevant, particularly in response to your advice are as follows:

ESA have continued to pay ESA as a Credits Only claim from 27/2/19 (so effectively, she still has an outstanding ESA award).  I am therefore thinking that this is another reason why an ESA reinstatement could be reconsidered (with SDP now included) rather than Universal Credit?

I initially questioned whether ESA and HB should be reopened approximately 12 months ago which was prior to the PIP award being made and backdated but before the new SDP gateway was closed.  I am therefore wondering if I can argue that the SDP gateway rule does not apply as we highlighted this prior to the rule change in January 2021?

Any further advice/information would be much appreciated.

Thanks.

Dave

There is no such thing as a credits only award of ESA. Your client receives NI credits for LCW. It is not possible for ESA to be reinstated on the back of an entitlement to credits.

I am not sure what specifically is meant by highlighting the rules change or questioning whether the benefits should have been re-opened. Theoretically your client could have claimed ESA prior to 27/01/21 on the footing that she was entitled to HB with the SDP included (albeit there would have been practical difficulties in doing so because the LA denies that she has any HB entitlement at all), but if she did not make such a claim then it is too late to do so now.