Contributory ESA on conversion from IB with High Rate Care - pension deduction

Client received Incapacity Benefit from when he retired early on medical grounds in 1995 and he was awarded an Occupational Pension of about £65 p/w granted on the basis of permanent inability to return to work. He was awarded HRC of DLA on an indefinite basis from 1998 (still in payment). He converted to ESA in about 2013/14 and received an Income Related top-up of EDP/SDP. His pension is deducted in full from his ESA award.

1) Where someone is entitled to both CB ESA and IR ESA is it correct to deduct the pension payment pound for pound (presumably from the income related part) rather than £85 ignored then 50p in the £1, as per the rules on Contributory ESA? I assume it is but would be grateful for confirmation.

2) CPAG P.644 says: “if you are transferred from IB to ESA and your pension payment was ignored immediately before the transfer, it continues to be ignored in your ESA. This includes if your IB was not reduced because because you were entitled to the highest rate of DLA care component…”

Can anyone point me to where the Regs for the second sentence from CPAG comes from?

The first sentence is referenced to the ESA (TP) (EA) (no.2) Regs, whatever they are. Can anybody direct me to these as well please? No luck on Google for me.

3) And finally, https://www.nidirect.gov.uk/articles/incapacity-benefit says:
Exceptions to pension income rule. This rule does not apply if:
you started receiving Incapacity Benefit before 6 April 2001
your claim is made under the ‘linking rules’ for Incapacity Benefit and links back to before 6 April 2001
you receive the highest rate of the care component of Disability Living Allowance

Does anyone know if this also applies to England and whether the pre-2001 rule made it across into ESA conversion cases too?

Thank you.

The answers are -

1 - there are different rules for NI based and income related ESA but the rules apply to each part - therefore, if income related ESA is wiped out by the £ for £ occupational pension, the remaining NI based ESA is only reduced by the over £85 rule

2 - Para 11 of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (No 2) regulations 2010 (which modifies reg 75 of the ESA Regulations 2008)

3 - yes it does apply to England and conversion cases (as it is in the transitional provisions regulations).

I have had a case recently which did not involve income related ESA, only NI based (on conversion from Incapacity Benefit). Client was interviewed under caution. £24K overpayment raised, and notified that prosecution being considered. All revised on MR - I can fax a copy of the submission if you need it, which includes relevant IB legislation

Brian, you are a star. Thank you.

fax no. is 01484 480549, that would be great.

Sent!! Hope it helps

Received and it certainly does help, excellent work Brian.

So, what I am looking at is a revision of the decision to deduct his pension payment from his IB from 1998 until his ESA conversion in 2013/14 (after which it has been correctly deducted from his Income Related ESA).  I imagine the problem will be proving that he notified IB of his HRC DLA award which, given the timescales involved, might be insurmountable. I suppose that I need to start with a Subject Access Request and take it from there.

Any further advice or suggestions from anyone much appreciated.