Enhanced Disability Premium not awarded for partner of claimant

Hi, Hope you can help me.

My client (the lead claimant for HB/CTB) is in receipt of IB and DLA (low rate care). His wife is in receipt of the support component of ESA and DLA (high rate care).

Decision notice he has received from LA for HB/CTB show that the applicable amount includes personal allowance (couple rate) + disability premium (couple rate) which totals £147.05.  Our QB shows that there should also be an enhanced disability premium as the claimant’s wife is in receipt of DLA high rate care which totals £167.30.

We telephoned the local authority to point this out but they disagree (state that EDP cannot be paid when the partner gets support component of ESA) and they recommend swapping claimants so that the wife is the lead claimant. They will then award the EDP but the Disability Premium within the applicable amount is replaced by the support component which is a lesser amount (applicable amount = £158.55).

The benefit programme we use is Quick benefit Calculation 15 (Lisson Grove) it comes up with a bright orange box telling us that if wife is claimant they are better off swapping due to disability premium being greater than support component within applicable amount.

I presume that other people use the same benefit programme (QB15) and if so then if it is at fault it I cannot believe it has not been picked up before now (as ESA around for 3 years now) and I can therefore only presume that it is our local authority who is at fault.
+ I cannot find anywhere where it states the EDP cannot be paid when at least one of the couple receive high rate care.

Has anyone else come across this or is it the benefit programme that our LA uses that is incorrect?

If we are right and our LA is wrong there must be loads of claimants not receiving the EDP.

Thank you in advance.

Unfortunately, I think your LA is correct and the calculator is wrong if that is what it is suggesting.

Para 15(1)(a) of Schedule 3 to the HB Regs, as amended, provides two routes to EDP:

1. Route one is that the SSWP has decided that the claimant has limited capability for work related activity.

2. Route two is that the claimant or a member of the claimant’s family who has not attained the qualifying age for SPC is (or would be but for a suspension etc) paid HRCC of DLA.

So it is only where the claimant has LCWRA that that is a route to EDP.

Have a look at page 532 of the current CPAG’s HB and CTB Legislation (although note the amendments to that rule described at page 37 of the supplement.

Or here is the current amended version:

15.– (1) Subject to sub-paragraph (2), the condition is that–

(a) the Secretary of State has decided that the claimant has, or is to be treated as having, limited capability for work-related activity; or

(b) the care component of disability living allowance is, or would, but for a suspension of bene?t in accordance with regulations made under section 113(2) of the Act or but for an abatement as a consequence of hospitalisation be payable at the highest rate prescribed under section 72(3) of the Act in respect of–

(i) the claimant; or

(ii) a member of the claimant’s family,

who has not attained the qualifying age for state pension credit.

(1A) Where the condition in sub-paragraph (1) ceases to be satis?ed because of the death of a child or young person, the condition is that the claimant is entitled to child bene?t in respect of that person under section 145A of the Act (entitlement to child bene?t after death of child or qualifying young person).

(2) The condition is not satis?ed if the person to whom sub-paragraph (1) refers is–

(a) a claimant who–

(i) is not a member of a couple or a polygamous marriage; and

(ii) is a patient within the meaning of regulation 28(11)(e) and has been for a period of more than 52 weeks; or

(b) a member of a couple or a polygamous marriage where each member is a patient within the meaning of [4 regulation 28(11)(e) and has been for a period of more than 52 weeks.

As the support compoent PLUS the EDP are together larger than the DP paid at the couple rate (eg £32.35 +£20.25 = £52.60 > £41.10) they are better off with the one on ESA support group being the claimant of HB (assuming not on irESA in any event in which case they get maximum HB anyway).

Hi Martin - could you expand on your reasoning here - the wife is in receipt of DLA(HRCC) so I would have thought they should have EDP included in their applicable amount for HB whether she or her husband is the claimant (via the second route you cite.)

The husband should be the claimant for HB because the couple rate of DP (41.10) exceeds the SC (32.35) and they’ll get EDP in any case.

If the wife didn’t get DLA(HRCC) the situation would be reversed and she should claim to get the EDP. (EDP+SC exceeds DP)

I think the LA are wrong when they
“(state that EDP cannot be paid when the partner gets support component of ESA) “

There is no such rule: perhaps they’re confused by Sched 3 para 13(9)  which prevents the award of DP (but not, of course, EDP) where the *claimant* has LCW.

Woops.

Sorry I read the facts wrong….

Ignore my previous post- the only point in there I was trying to make was that you cannot get EDP on basis of partner of claimant being in the support group…

I am sorry.

You are quite right- if the wife is in receipt of HRCC DLA then an EDP is payable (and so, on these facts is a couple rate DP).....

My initial post applied to a situation where the wife was not in receipt of HRCC DLA (not particularly helpful as that is not what you were looking for).

Martin

That makes sense, thanks - FWIW I think whole HB/ESA swaps thing is a pointlessly confusing make-work scheme which arbitrarily reduces entitlement for no comprehensible reason (once you factor in the potential effect of swapping on LHA it can be very difficult advise clients correctly.)

Thank you for your replies.

That has confirmed what I was 99.9% sure of.

I hope I don’t have a hard time convincing the local authority of this.
There must be quite a few claimants missing out on the Enhanced Disability Premium in our area.
The benefit programme that the local authority apparently use is called ‘Academy’.

Thanks
Leanne

Is there not a possible carer premium due in this calculation or does someone else claim this?

Somone else is claiming Carers Allowance unfortunately.

Thanks anyway though.

The ready reckoner is really useful. Thanks.

Update on case -not good news!

We asked for a reconsideration of the decision to not award the EDP (as partner on high rate care, DLA).

The local authority have refused to revise the decision and are adamant that the EDP cannot be applied in this scenario, unless claimiants are swapped and then the support component is awarded (giving a EDP) but then losing the disability premium for a couple.

They state that cannot get support component within their applicable amount if they are also receiving the the couple rate of DP (which we understand). But we think that the EDP and DP can be applied as the person on ESA (support group and high rate care)  is not the claimant.

The Local authority state that the legislation used is from the HB/CTB circular A11/2008??

They still state that our cient is better off swapping claimant (gain EDP but loose DP).

If we do not disagree case will need to heard by tribunal!

I plan on continuing with tribunal but unsure whether to let client swap claimant now. If they do so and we win they will loose money -but could then Local authority give the difference in ex-gracia payment as they wrongly advised?

Daughter claims Carers allowance and they are not wanting to swap + partner has Incapacity claim so unless he surrenders this they do not qualify for Income Support (ESA is contribution based).

here’s link to rightsnet news story on HB/CTB A11/2008 which has link to memo -

http://www.rightsnet.org.uk/news/story/HBCTB-changes-consequential-on-the-introduction-of-employment-and-support-a/