IR-ESA, HB - temporary absence from home whilst still in UK - clincally vulnerable - covid related

I don’t know if anyone can offer some advice on the following situation.

I have a service user who has lived in a Peabody HA flat in London since 1992. He continues to receive DLA – has not yet been invited to claim PIP – at the higher rate for both care & mobility.

He was in receipt of IR-ESA & HB.

He is a person living with HIV (PLWHIV).

At the start of the pandemic in March 2020 after consultation with his HIV consultant he was advised that he was in the ‘clinically vulnerable’ group (category 4) and the service user stated that he would go to Scotland to shield and the Consultant concurred that this would be a wise thing to do. He was concerned about being exposed to COVID if he remained in London, and went to stay with his sister in Scotland where he felt he would be safer. He has essentially remained in Scotland since then returning occasionally to London for hospital appointments and short stays at his flat.

He did not at the time or at any stage thereafter inform either the DWP or the Local Authority as to his change of circumstances. He states:

With regards to notifying the DWP of my move, it never really occurred to me that lockdown would have gone on for as long as it has. Or that my circumstances constituted a change they ought to have been told about. I understood Covid to be an exceptional event that changed everyone’s life and routine. Nobody could have foreseen the time lockdown would go on for and my initial thoughts were it would all be over way before now.  I have never intentionally tried to withhold information from the DWP.

On 14th May 2021 he received a telephone call from a DWP compliance officer (acting on anonymous information) where he was asked about his time in Scotland and explained his reasons for being there.

Subsequently his ESA payment has stopped. He received his last payment around 18 May 2021 but no further payment and no decision letter notifying him of the change. He has now contacted the DWP and asked for the decision letter so that he can consider challenging it. Once we know the reasons we will update this forum

When he last checked with his HA they stated his rent account was up to date. However, this was on 25 May 2021. We have told him to check to see if his HB remains in payment as the likelihood is that it will have been either suspended or stopped if ESA has ended.

Apart from being a PLWHIV the service user has multiple other health issues. During the time of his absence he has been back to his London flat on a number of occasions.

He returned to London for a week at a time on two separate occasions – September 2020 & February 2021. He also states that he has made at least half a dozen other separate visits to London for hospital appointments etc. where he would remain for 2-3 days at a time.

He is considering relocating permanently to Scotland and has put his flat up for Mutual Exchange. This consideration has only recently occurred – in the last 4-6 weeks.

Also in the last 4-6 weeks he has registered his health care in Scotland.

The DWP have advised him to claim UC from his London address – not sure why if they have stopped his IR-ESA, (and HB) and if they consider that he is based in Scotland – which he has done but states he has asked for the claim to be ‘suspended’. I will try and get clarification on this.

His case raises lots of issues:

1. Putting aside for the moment recent events of putting his flat up for Mutual Exchange which he would have done whilst living in London if not for COVID and moving his health care or registering in Scotland – does he have any case for trying to argue as to his IR-ESA and HB continuing and being reinstated? Is this only possible if he moves back to London until any prospective Mutual Exchange is complete? Obviously if he remains in Scotland without his housing costs being met in his Peabody flat then the Mutual Exchange will not complete and he will lose his London flat and be without housing either in London or Scotland. As far as I can see he could potentially argue given his regular visits to London that his housing costs continue to be met through HB and that each return visit will reset the 13/52 week time period – at least so long as the absence remained temporary. Is that correct?
2. Or does he need to proceed with a claim for UC? Given that he has made a claim for UC but ‘suspended’ it – based on his London address – does this mean that his HB claim will have ended with no prospect of HB being paid for housing costs again (see 1 above)? If the DWP incorrectly closed the IR-ESA claim can he then argue that both IR-ESA and HB be reinstated if there are grounds or arguments that he should have remained entitled to both those benefits and not been compelled to claim UC.
3. Is his only prospect going forward claiming UC in Scotland from his sister’s address unless he moves back to London?

And once I have more information I will update.

Any light you can throw on the matter would be gratefully appreciated.

I am not sure I understand why it matters for ESA purposes whether he is living in London or Scotland (subject to SDP issues maybe) and I am struggling to see how it provides a basis for either stopping or suspending the award. Certainly he should be questioning this and requesting reinstatement.

The real significance is to his housing benefit and whether there are periods of disentitlement during his various absences. Provided that he gets back to the London property before the HB decision is made then it ought to be dealt with as a closed period supersession for any periods of disentitlement. If a decision is made to end his entitlement whilst he is still in Scotland then it is not going to be possible to get back onto HB unless he can establish that he was in an allowable temporary absence when the decision was in fact made.

I would pay little mind to whatever the compliance officer has suggested they should or shouldn’t do as far as UC claims and the addresses for those claims. He needs to decide where he lives based on his actual circumstances and where he can legitimately say his centre of interest is. In either case his options seem to be pursuing the re-instatement of ESA (&HB; if appropriate) or claiming UC. The matter may or may not have been taken out of his hands if he has already put in a UC claim depending on how far advanced it is.

Thanks for your reply Elliot. That is helpful

Yes I couldn’t fathom out why ESA should have stopped based on the facts described but once we have the decision letter we will know a bit more.

Are you sure ESA hasn’t simply been suspended?

A phone call might lead to reinstatement if so.

As the customers Consultant stated that the temporary move to Scotland would be beneficial , it may be worth suggesting that any periods awaty from london which exceeding the basic 13 weeks permitted,  would be on the grounds of medical reasons -  he is clim=nically vulnerable and would have been at much higher risk/ have less support network by staying in LondonHB may not got for it - but if they dont id def consider asking for a reconsideration/ take to appeal

Hope he gets it sorted

Been on leave for a few days - thanks all for your helpful responses.