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Is it income based or contributory based ESA?
Scenario:
Claimants become mixed age couple. Mr was the younger person and he was the benefit claimant and in receipt of CB ESA with an income based top up. He was also the Housing Benefit claimant. His wife turned pension age and they were advised that they would have to claim UC. However as the younger person was the benefit claimant we were able to keep them on legacy benefits.
However Housing Benefit have now revised this decision based on further info from ESA. With all premiums included (pensioner, support group, carers) after all deductions they have an income based top up of approx £95 per week. He also receives CB ESA of £117 per week (before new rates were introduced). ESA have now said that his claim is treated as a contributory based claim only for the following reason: “If the amount of ESA(IR) is less than the amount of ESA(C), the entitlement is made up of the ESA(C) award only.”
As there is no income based ESA in payment, Housing Benefit have closed the claim and have asked the tenant to claim UC. Based on income there is no entitlement to UC so they are going to be worse off by approx £195 per week.
If ESA are correct then unfortunately nothing we can do. However as there was an income based top up is this correct?
Any thoughts would be most welcome.
That’s one of the most absurd statements I can remember reading (and I see a lot sadly).
If an ESA award contains an amount of contributory ESA and income-related ESA, then there is clearly an entitlement to income-related ESA that enables the HB award to continue to be paid.
By what torturous logic have they arrived at a conclusion that if the c-ESA award simply pays more than the income-related part of ESA, that means the whole award is actually contributory ESA? It’s rubbish.
Hi Paul
Thank you for your reply. I agree totally with you in this however I have been firmly told that I am wrong. This is the actual response from ESA. Thoughts again welcome:
Entitlement comparison between ESA(C) and ESA(IR)
1. If both ESA(C) and ESA(IR) are claimed, the higher entitlement is payable.
2. Any entitlement to ESA(C) is for 365 days only, unless the claimant is placed in the Support Group
3. If the amount of ESA(IR) is greater than the amount of ESA(C), the entitlement is made up of the ESA(C) award with the excess paid as ESA(IR).
4. If the amount of ESA(IR) is the same as the amount of ESA(C), the claimant receives their ESA(C) first. No ESA(IR) will therefore be paid.
5. If the amount of ESA(IR) is less than the amount of ESA(C), the entitlement is made up of the ESA(C) award only.
You say - Mr was the younger person and he was the benefit claimant and in receipt of CB ESA with an income based top up.
Therefore it’s this, surely - 3. If the amount of ESA(IR) is greater than the amount of ESA(C), the entitlement is made up of the ESA(C) award with the excess paid as ESA(IR).
Don’t know what else to say - it’s an ESA award made up of c-ESA and income-related ESA. Whether or not the actual amount of c-ESA payable is higher or lower than the income-related payment of ESA is neither here nor there, your client is entitled to and being paid both forms of ESA and so has an entitlement to income-related ESA.
the partner who is now a pensioner - do they get SRP? - that new income would be included in the re-assessment of ESA IR - and it may be that the srp plus ESA conts put them ocer esa levels - the individual ESA conts would continue and a new income of SRP is also included.
if ESA IR has ended , thenHB is correct to end
But much depends on what income the pensioner partner now has.
the partner who is now a pensioner - do they get SRP? - that new income would be included in the re-assessment of ESA IR - and it may be that the srp plus ESA conts put them ocer esa levels - the individual ESA conts would continue and a new income of SRP is also included.
if ESA IR has ended , thenHB is correct to end
But much depends on what income the pensioner partner now has.
Exactly, if the income-related ESA award is no longer in payment due to excess income, then of course the award is a c-ESA award only.
Hi Prisca
Here is the breakdown of the ESA claim:
My calc shows that the total rate payable should have been £394.30
Couple personal allowance: £133.30
Support: £44.70
Pensioner Premium couple: £173.55
Carer: £42.75
Total: £394.30
Take off deductions of :
Pension: £203.85
Industrial injuries: £41.52
This would leave entitlement of £148.93 ESA. This would be £129.50 CB ESA with an income based top up of £19.93 per week.
No support component alongside pensioner premium unfortunately. Well, I say that, but like everything else in ESA award breakdowns it’s more complicated than that: the pensioner premium is reduced by the amount of the support component, but either way you’ve overestimated the applicable amount by £44.70 which in this case is the difference between qualifying for ESA(ir) and not doing so
I work out their esa ir “applicable amount”£ as follows:
Couple £133.30
Enhanced disability premium £ 27.90 ( because in support group)
Carer £ 42.75
Pensioner with support component £128.85
Total £332.80
their income is
SRP £203.00
Ind Injuries £ 41.55
ESA Cont £129.50
total £374.05
if their income from SRP, Industrial induries, ESA Conts and any carers is more than that,then thers no ESA IR award - the ESA payable is just ESA conts - so no passported legacy benefit in payment and HB ends.
i used the figures on the ESA part of this for my calcs
No EDP alongside pensioner premium.
Correct ESA calculation is £133.30 basic, £44.75 support component, £42.75 carer, £128.85 reduced pensioner premium for people with support component, total £349.60
Edited to add: what makes this so difficult to interpret is that on those figures there actually is entitlement to ESA(ir) - only the pension income and IIDB are taken into account for that purpose. But the resulting ESA(ir) entitlement is less than the ESA(c) to which the claimant is also entitled, therefore only the ESA(c) is paid. I mentioned this on the thread about confusing decision notices https://www.rightsnet.org.uk/forums/viewthread/19090/. Rather than first establishing ESA(c) entitlement and then counting it as income in the ESA(ir) calculation, DWP simultaneously calculates entitlement to both and then only pays ESA(ir) if and to the extent that it exceeds ESA(c). It makes the decision letters way too complicated.
[ Edited: 27 Apr 2023 at 01:35 pm by HB Anorak ]
if their income from SRP, Industrial induries, ESA Conts and any carers is more than that,then thers no ESA IR award - the ESA payable is just ESA conts - so no passported legacy benefit in payment and HB ends.
Should HB not simply be suspended when passporting benefit ends? HB ask claimant what their actual circumstances are and HB may still be payable. They might, of course, be better off switching to UC but they don’t necessarily have to.
If they don’t respond then HB would end?
Should HB not simply be suspended when passporting benefit ends? HB ask claimant what their actual circumstances are and HB may still be payable. They might, of course, be better off switching to UC but they don’t necessarily have to.
If they don’t respond then HB would end?
No, because HB terminates under the mixed age couple rules if entitlement would fall under the HB (SPC) Regs. If the younger partner is in receipt of ESA(ir), that keeps the award under the working age HB Regs and prevents it from terminating.
if their income from SRP, Industrial induries, ESA Conts and any carers is more than that,then thers no ESA IR award - the ESA payable is just ESA conts - so no passported legacy benefit in payment and HB ends.Should HB not simply be suspended when passporting benefit ends? HB ask claimant what their actual circumstances are and HB may still be payable. They might, of course, be better off switching to UC but they don’t necessarily have to.
If they don’t respond then HB would end?
No the HB award cannot ne suspended in a case like this.
Where a couple turn into a mixed-age couple when the older partner reaches SPA, Article 6(2)(a) of the CO31 stipulates that a working-age HB award terminates if it transforms into a pension-age HB award. Unless a legacy benefit like income-related ESA award is also in payment to the younger partner, in which case both the HB award and the ESA award can continue.
If, as seems likely in this case, the extra income realised on the older person reaching SPA means the income-related ESA award ceases (even though the c-ESA award continues), then it’s game over for the HB award and the only mechanism to get housing costs paid is to claim UC instead.
There was discussion about whether Article 6(2)(b) is actually drafted in such a way as to enable this to happen on a legislative basis but I am not aware that anyone has successfully challenged such decisions and it is what happens in practice.
Ah, thanks HB and Paul.
Interesting stuff.
Thank you everyone for your replies. Especially in relation to the pensioner premium reducing. Every day is a school day. This originally issue had arisen as the claimant informed us that they were getting income based ESA of £95 per week as well as CB ESA. Unfortunately they provided us with incorrect information at the time.
Thank you everyone for your replies. Especially in relation to the pensioner premium reducing. Every day is a school day. This originally issue had arisen as the claimant informed us that they were getting income based ESA of £95 per week as well as CB ESA. Unfortunately they provided us with incorrect information at the time.
Thanks for letting us know, I’m quite relieved to be honest, at least it wasn’t more DWP absurdity at play.