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Mixed age couple pre 2019 but single PC & HB claims
Client is part of a mixed aged couple (male aged 72). He has claimed pension credit and housing benefit as a single person since before May 2019 and continues to do so despite the fact he has lived in a 1 bedroomed flat with his partner (not yet of pension age 53) since 2013. She has no income and I do not think there was any exception whereby a single person PC claim would have been necessary – I have yet to get to the bottom of why her presence was never declared. They do not seem to have managed the claim well - They’ve been short by £150pcm of HB because they haven’t notified the council of rent increases.
I am assuming that the savings provisions will not help as the claim for HB and PC were made in his name only - (WRA 2012 sec 4 and 2 (4) (b)) here.
Will they now have to claim UC (this will give him a slightly smaller entitlement than single PC award )
I am assuming HB and CTR will now contend his partner was a non-dependant and issue overpayment notice so we will have to challenge that on the basis that she is, and was his partner. There is no issue going forward re NDD as he has recently been awarded AA.
He has had 100% council tax reduction, and there is no mention of a 25% reduction for a single person on the last CT statement seen.
She has not yet claimed Carers Allowance but is going to do so.
I’d appreciate any thoughts on this, and how to advise them going forward, particularly in how they notify the council and then claiming UC as a couple.
From what you have said, your client is being overpaid PC and HB so you need to advise them that they don’t appear to have properly disclosed the existence of the partner, which means they have no entitlement.
They will also need to make UC claims asap but I can’t see any obvious argument as to why any overpayments won’t be recoverable as it appears your client has not disclosed the fact of having a partner living with them. You are correct that the UC award won’t pay as much as they currently receive in PC and HB.
I can’t see how NDD’s come into play, she’s his partner which simply means he doesn’t have any entitlement to HB at all so the whole amount is potentially recoverable.
It’s probably helpful if a single person discount wasn’t applied to his Council Tax liability as well as that would have also been overpaid potentially although that is less clear depending on any CTR they might be entitled to (although that should also be under the relevant working-age scheme).
If she’s caring for him, she can highlight this with her UC claim and provided she meets the conditions, she can have the carer element included but if she actually claims CA, that amount will be taken from any UC award.
Saw a similar case a while back, and did some thinking about how this works under the mixed age couple rules in the WRA 2012 No 31 Order.
On the HB side, HB terminates if one of the events referred to in article 6 of the Order occurs: becoming a member of a mixed age couple after May 2019, or a working age HB award migrates to the HB(SPC) Regs after May 2019. i cannot see how either of those things has happened.
People might say: aha, but wouldn’t he be treated as if he had become a member of a mixed age couple when the Council was notified, because of the late reporting of an advantageous change of circumstance? Well I don’t think so, no - for three reasons
1. The mechanism of treating a change as if it happened on the date reported applies for the purpose of fixing the date of an advantageous superseding decision. If HB is terminating, that’s hardly advantageous!
2. If he is already on max HB, it’s not an advantageous change in any case so the late reporting issue doesn’t arise
3. The current operative HB decision was almost certainly made more recently than they became a couple in real life, therefore it’s not actually a change of circs vis a vis that decision. What has happened is that one or more HB decisions has been made in ignorance of the facts, and while it is too late to revise any such decision in his favour the fiction of treating an event as if it occurred on a later date is not engaged in this context.
As for Pension Credit, he cannot remain entitled to SPC unless he already was entitled as part of a mixed age couple in May 2019.
the 2002 Act shall have effect as though section 4(1A) (exclusion of mixed-age couples from state pension credit) had not come into force in relation to a member of a mixed-age couple who, on the day before the appointed day and as part of that couple, is entitled to—
(a) state pension credit;
Does that mean the award must have already reflected the fact that he was part of a mixed age couple, and the saving therefore does not apply? Or could he argue that he literally was “part of that couple” before the appointed day, and was also entitled to SPC?
In summary: my view is that HB survives, Pension Credit maybe, maybe not. The surviving HB award will probably be a better buy than UC.
Saw a similar case a while back, and did some thinking about how this works under the mixed age couple rules in the WRA 2012 No 31 Order.
On the HB side, HB terminates if one of the events referred to in article 6 of the Order occurs: becoming a member of a mixed age couple after May 2019, or a working age HB award migrates to the HB(SPC) Regs after May 2019. i cannot see how either of those things has happened.
People might say: aha, but wouldn’t he be treated as if he had become a member of a mixed age couple when the Council was notified, because of the late reporting of an advantageous change of circumstance? Well I don’t think so, no - for three reasons
1. The mechanism of treating a change as if it happened on the date reported applies for the purpose of fixing the date of an advantageous superseding decision. If HB is terminating, that’s hardly advantageous!
2. If he is already on max HB, it’s not an advantageous change in any case so the late reporting issue doesn’t arise
3. The current operative HB decision was almost certainly made more recently than they became a couple in real life, therefore it’s not actually a change of circs vis a vis that decision. What has happened is that one or more HB decisions has been made in ignorance of the facts, and while it is too late to revise any such decision in his favour the fiction of treating an event as if it occurred on a later date is not engaged in this context.As for Pension Credit, he cannot remain entitled to SPC unless he already was entitled as part of a mixed age couple in May 2019.
the 2002 Act shall have effect as though section 4(1A) (exclusion of mixed-age couples from state pension credit) had not come into force in relation to a member of a mixed-age couple who, on the day before the appointed day and as part of that couple, is entitled to—
(a) state pension credit;
Does that mean the award must have already reflected the fact that he was part of a mixed age couple, and the saving therefore does not apply? Or could he argue that he literally was “part of that couple” before the appointed day, and was also entitled to SPC?
In summary: my view is that HB survives, Pension Credit maybe, maybe not. The surviving HB award will probably be a better buy than UC.
How can a single person HB award continue if it was made in absence of the fact that the client has a partner living with them? He has lived with her since 2013?
Because HB has only one claimant who personally “owns” the award. Might have a partner, might not. Might go from being single to being a member of a couple, or vice versa. But at all times, one claimant, one award.
In general, therefore, HB does not have to end simply because of a change of couple status. But for mixed age couples, HB must end if one of the events in Article 6(2) occurs. I don’t think one of those events has happened, so the pensioner remains entitled to HB.
If it results in a different amount of HB, and subject to the time limits for advantageous revision, the remedy for awarding HB in ignorance of the fact that the claimant has a partner is simply to revise any decisions that were made incorrectly and make the revised decision using the correct facts.
But I read it as he’s claimed PC and HB as a single person whilst he had a partner already living with him, not that the single HB award was already in place.
This is starting to make my head hurt. Say the client has claimed PC and HB as a single person since 2017 with a partner living with him. As you note, the PC award cannot be rectified as I see it (unless of course he told them he had a partner in 2017 and they didn’t take account of that fact).
If the erroneous PC award passported to full HB as a single person. and if the PC award was made erroneously, could they go back to revise the HB decision to incorporate her as his partner to 2017, which in turn would potentially mean the HB award could now continue as it would have to have been made under pension-age rules? Surely it wouldn’t be a working-age HB award as he is the claimant, he is over SPA, and she doesn’t claims any MTB’s?
[ Edited: 9 May 2023 at 12:58 pm by Paul_Treloar_AgeUK ]might it be that the partner isnt on the PCGC claim cos she has NRPF?
Thats prob too simple, but it’d work nicely
might it be that the partner isnt on the PCGC claim cos she has NRPF?
Thats prob too simple, but it’d work nicely
I did wonder that myself but Deborah said she’s checked the reasons why he might be able to claim as a single person and none of them applied.
If the erroneous PC award passported to full HB as a single person. and if the PC award was made erroneously, could they go back to revise the HB decision to incorporate her as his partner to 2017, which in turn would potentially mean the HB award could now continue as it would have to have been made under pension-age rules? Surely it wouldn’t be a working-age HB award as he is the claimant, he is over SPA, and she doesn’t claims any MTB’s?
Exactly, yes: revision of the HB award to reflect his true circumstances does not activate any of the mixed age couple termination triggers. If she had income, it might result in an HB overpayment - but OP says she doesn’t so I think max HB continues with household details updated on the system. Arguably doesn’t even need a decision if the outcome is unchanged
If the erroneous PC award passported to full HB as a single person. and if the PC award was made erroneously, could they go back to revise the HB decision to incorporate her as his partner to 2017, which in turn would potentially mean the HB award could now continue as it would have to have been made under pension-age rules? Surely it wouldn’t be a working-age HB award as he is the claimant, he is over SPA, and she doesn’t claims any MTB’s?
Exactly, yes: revision of the HB award to reflect his true circumstances does not activate any of the mixed age couple termination triggers. If she had income, it might result in an HB overpayment - but OP says she doesn’t so I think max HB continues with household details updated on the system. Arguably doesn’t even need a decision if the outcome is unchanged
Now you’ve got me wondering the same about the PC award.
Rather than being overpaid, is there an argument they’ve actually been underpaid for the period? If that were the case and you could establish a PC award for them both as a couple pre May 2019, then is there an argument the savings provisions under CO31 are in fact triggered?
The exclusion of MACs from Pension Credit is much more tightly drafted than the exclusion from HB. Under the SPC Act as amended, a pensioner cannot be entitled to SPC with a working age partner unless the article 4 savings apply.
It will probably be too late now to get SPC decisions pre-May 2019 revised in his favour due to the normal decisions and appeals time limits. He didn’t disclose that he had a partner and he seems to be out of time to do anything about that. But he was in fact a member of a couple at that time even if his SPC rate didn’t reflect that. If that satisfies Article 4, he could now have a superseding decision adding the partner going forward, but would miss out on arrears
Ah yes, an any time revision won’t work as the mistake hasn’t meant he’s been paid too much PC ironically so we’re looking at a supersession of the original awarding decision.
Don’t think savings provisions can assist as a result:
the 2002 Act shall have effect as though section 4(1A) (exclusion of mixed-age couples from state pension credit) F1 had not come into force in relation to a member of a mixed-age couple who, on the day before the appointed day and as part of that couple, is entitled to—
(a)state pension credit;
By definition, the PC award isn’t made because he is entitled as a couple.
However, if they can argue for the HB award to carry on, then Art.4(1)(b) could save the day because then he was entitled to pension-age HB on 14 May 2019 and therefore a new PC claim could be made if the HB award is unbroken.
Peter is correct, leaving aside the current provisions re mixed aged couples, it would otherwise be the case that becoming part of a couple would not necessarily end an award of PC or HB (see R(IS)13/05 and CIS/1720/2004)
CIS1720/2004 is in the commissioners archive area in resources
[ Edited: 9 May 2023 at 06:06 pm by Stainsby ]Can I check my understanding - The only route to avoid the need for a UC claim would be to revise (or ask for a supersession to take effect pre May 2019) of the HB decision because Art 4 (1) (b) can only help if a person was claiming or entitled to HB or PC on the basis that the person is a member of a couple ( 2(4) (b)).
The argument would be that for HB, as a claimant getting PC, the change (becoming a couple) was not required to be reported (HB SPC Regs 2006 Reg 69(6-8) and, by virtue of para 59, the change of circumstances takes affect from the Monday after it occurred. So, the claimant should ask for a supersession (assuming the single HB claim was in existence prior to them becoming a couple in 2013.)
If, however the HB claim was made after they became a couple then would it need to be a revision and that will only apply if the original decision was more favourable to the claimant than it should have been. Here, the mistake or ignorance makes no difference if PC passported him to full HB so how might this be dealt with? If the partner had income so HB was reduced or he lost guarantee credit then this could help but there may be HB overpayment but perhaps that may be worth the price.
Assuming HB is revised or there is a supersession which means the MAC savings provisions can then apply, what’s the position with PC? Presumably he reports a change of circumstances and asks them to wait for the HB decision. Assuming HB was awarded as a joint claim pre 2019 would he then need to make a new joint PC claim or would it just be applied to the existing claim from the date he reports the change?
Would welcome any thoughts and clarification if I have misunderstood
I will assume that the changes to HB and PC will come about by supersession given that the claimant reached pension age 7 years ago.
The Welfare Reform Act 2012 (Commencement) No. 31 and Savings and Transitional Provisions and Commencement No. 21 and 23 and Transitional and Transitory Provisions (Amendment)) Order 2019 (the Order) defines “mixed age couple” as
“a couple, one member of which has attained the qualifying age for state pension credit and the other of which has not”
Entitlement to HB or PC is not part of that definition
It is not helpful to talk of “joint” claims for HB or PC because that confuses the issue and we can only have a claim for either benefit in the name of the person currently getting them regardless of whether he has a partner.
A claim ceases to subsist once a decision is made on it and the resulting award (if any) can only be changed by revision or supersession of the decision.
The change of circumstances ( i.e becoming a couple ) occurred before 15 May 2019 ( the commencement day for the order) and the claimant would by definition be part of a mixed age couple on that day, regardless of when that change was notified.
The change would be neutral ( unless PC was terminated) as far as HB is concerned so the superseding decision will take effect on the day the change occurred .
It gets more complicated if PC is terminated, but that would arguably only occur if the partner had income or capital sufficient to end entitlement.
It is useful to look at the actual provisions of Regulation 7(2) of the Social Security and Child Support (Decisions and Appeals ) Regulations because it is arguable that (unless there are other considerations such as income and capital,) the supersession of the claimant’s PC award cannot result in the award being terminated regardless of the order.
Regulation 7(2) in so far as is relevant provides
(2) Where a decision under section 10 is made on the ground that there has been, or it is anticipated that there will be, a relevant change of circumstances since the decision had effect., or, in the case of an advance award, since the decision was made. the decision under section 10 shall take effect–
(a) from the date the change occurred or, where the change does not have effect until a later date, from the first date on which such effect occurs where–
(i) the decision is advantageous to the claimant; and
(ii) the change was notified to an appropriate office within one month of the change occurring or within such longer period as may be allowed under regulation 8 for the claimant’s failure to notify the change on an earlier date;.
(b) where the decision is advantageous to the claimant and the change was notified to an appropriate office more than one month after the change occurred or after the expiry of any such longer period as may have been allowed under regulation 8–
(i) in the case of a claimant who is in receipt of income support , jobseeker’s allowance , state pension credit or an employment and support allowance. and benefit is paid in arrears, from the beginning of the benefit week in which the notification was made;
(ii)in the case of a claimant who is in receipt of income support , jobseeker’s allowance or state pension credit. and benefit is paid in advance and the date of notification is the first day of a benefit week from that date and otherwise, from the beginning of the benefit week following the week in which the notification was made; or
(iii) in any other case, the date of notification of the relevant change of circumstances
Regulation 7(2)(b) provides that the superseding decision shall generally take effect from the time it is notified if the decision is advantageous to the claimant and the change was notified late
Article 4 of the order provides
Savings
4.—(1) Subject to paragraph (2), the 2002 Act shall have effect as though section 4(1A)(exclusion of mixed-age couples from state pension credit) had not come into force in relation to a member of a mixed-age couple who, on the day before the appointed day and as part of that couple, is entitled to—
(a)state pension credit;
(b) housing benefit; or
(c) state pension credit and housing benefit.
(2) The savings in the sub-paragraphs of paragraph (1) shall cease to have effect in relation to the member of the mixed-age couple referred to on any day after the appointed day when that person is not entitled to either state pension credit or housing benefit as part of the same mixed-age couple
I cannot see how the advantageous DECISION referred to in D&A Reg 7(2)(a)(i) can metamorphose into a disadvantageous decision in these circumstances. Reg 7 must be put into context and I would argue that the only consequences of late notification is that arrears of PC wont be paid under the advantageous decision.
The savings provision in Article 4 will continue to apply
[ Edited: 15 May 2023 at 03:55 pm by Stainsby ]