uh oh! - does bedroom tax and cap apply to mixed age couple post 15 May?

Hello

1. If a mixed age couple end up having to claim UC post 15 May, will they be subject to the bedroom tax and the cap? Seem to be getting mixed opinion

Bedroom Tax reg HB Reg A13(2)(d) exempts a couple if one is of pension age. Will that still apply?

Cap: CPAG p.1196. “The benefit cap does not apply if you are not getting UC or not getting HB for people below the qualifying age for pension credit.” So, looks like the cap would apply (unless other exemptions of course).

2. And, what about those who are still on PC or pension age HB after 15 May?

Bedroom Tax: I would say that the above HB Reg exempts them?

Cap: Looks like the cap would NOT have applied before and shouldn’t after the 15th May

Thank you very much in advance

Clive

1) The provisions in the UC Regs for the bedroom tax and benefit cap include no exemptions for mixed-age couples, so they would (and already do) apply.

2) Mixed-age couples can currently be receiving working-age HB or pension-age HB. This depends on whether they receive IS/JSA/ESA (working-age HB) or not (pension-age HB). Those receiving pension-age HB have no bedroom tax nor benefit cap. Those receiving working-age HB are exempt from the bedroom tax through the provision you mention, but would have the benefit cap applied.

So - using this thread as it remains the most relevant & would only complicate things to start a new one.

Mixed age couple who, when the older reaches pension age, will stay on irESA & HB because they are SDP claimants (older is currently the irESA & HB claimant).

Currently subject to bedroom tax of 25%.

I think that as Clive & Charles say above, they’ll be exempt once the older partner reaches pension age because of reg A13(2)(d) HB Regs 2006.

However, the (revised!) HB guidance says that removal of the spare room subsidy will continue:
https://www.gov.uk/government/publications/housing-benefit-adjudication-circulars-2019/a92019-mixed-age-couples-further-guidance

See para 13 & example 2.

I’ve looked in vain for any consequential amendments to the working age HB Regs, so I think that the bedroom tax would stop, & the guidance is wrong…

Any thoughts? Plenty of time to get this right in my instant case (older client doesn’t reach pension age not until next year), but would like to know anyway.

I don’t think that Art 8 of Commencement Order no 31 achieves continuation of the bedroom tax. It says the older partner is treated as not having reached pension age for the purposes of the award (ie so that the working age HB regs apply). But here, they would apply anyway because the clients will get irESA (Reg 5 HB Regs). So I think the HB Regs have to be read as they are, ie, as if the client is of pension age.

Is it possible that might be different in the case of the Jack & Mary example in the circular, where the couple are NOT on any other legacy benefit, so working age HB regs only apply due to Art 8? Again, I think not, cos Art 8 says very clearly ‘for the purposes of reg 5’ NOT for the purposes of the whole of the regulations.

Will

I agree with you that the guidance is wrong. Peter Barker (HB Anorak) pointed this out to me recently. As you say, this is both if they are on another legacy benefit and also if they are just on HB.

I believe paragraph 13 of the guidance is misleading in another respect as well. It doesn’t differentiate between which of the couple is the claimant, implying that HB will continue in either case. In fact, if the younger member is the claimant, HB will still end (if they are not entitled to another legacy benefit), and will have to be reclaimed by the older member of the couple.

EDIT TO ADD: It has been pointed out to me that either member of the couple could do the reclaim for HB.

Thanks Charles. My betting was on you or HB anorak knowing!

Re that para 13 of the guidance - I agree.  Art 8 provisions specifically say ‘an award of benefit referred to in the following sub-paragraphs to that member’ ie the older partner.

Has anyone been in touch with DWP to point out this problem with the guidance?

We’ve already had to get this guidance corrected once before, so it would be helpful to try and ensure this apparent error is also rectified.

I’ll suggest this to the adviser who forwarded me the case Paul - I agree, not impressive in already revised guidance!

I’ve just flagged this with our DWP contacts, I’ll let you know if/when we hear anymore.

Met Pension Service colleagues yesterday and the example in the HB Cicrular is only about MAC’s who are prevented from moving onto UC because of the SDP gateway. This is because of the provisions that allow the older partner to be treated as satisying the age-related conditions to continue claiming IS/ESA/JSA. Essentially because they are treated as being under SPA, the bedroom tax continues to apply.

They also confirmed that in any other situation where the younger partner claims a legacy benefit and the older partner reaches SPA. the bedroom tax should stop being applied at that point.

Paul_Treloar_AgeUK - 27 September 2019 09:02 AM

Met Pension Service colleagues yesterday and the example in the HB Cicrular is only about MAC’s who are prevented from moving onto UC because of the SDP gateway. This is because of the provisions that allow the older partner to be treated as satisying the age-related conditions to continue claiming IS/ESA/JSA. Essentially because they are treated as being under SPA, the bedroom tax continues to apply.

They also confirmed that in any other situation where the younger partner claims a legacy benefit and the older partner reaches SPA. the bedroom tax should stop being applied at that point.

Paul - just coming back to you on this. MACs with SDP. Where the older partner is treated as below SPA in order to allow an award of IS/irESA/ibJSA to continue.

What stops reg A13(2) HB Regs from applying? is it to do with the wording in Art 8(2)(b) Commencement Order 31:

‘not having attained that age for housing benefit, for the purposes of regulation 5 of the Housing Benefit Regulations 2006(8) and regulation 5 of the Housing Benefit SPC Regulations, so that the Housing Benefit Regulations 2006 apply to the assessment of the award.’

In this case though the working age regs would apply anyway because of IS/irESA/ibJSA.  And when I read Art 8(2)(b), if the HB regs 2006 apply to the assessment of the award, then so does reg A13(2)(d)...the only bit of the regs where they are treated as below SPA is reg 5 itself where necessary to stop it being a pension age award (which in this case, it would not be anyway). Or is simply that if Art 8(2)(b) applies, & whether or not HB would be working age anyway, you have to carry through that treatment to the rest of the HB regs…?

No actual case at the moment. Would like to be clear about this though.

I believe their reasoning is as follows Will.

Art.8(2)(b) states (my emphasis):

(2) Where this article applies, the member of the mixed-age couple who has attained the qualifying age for state pension credit is, for the purposes of an award of benefit referred to in the following sub-paragraphs to that member, to be treated as—

(b) not having attained that age for housing benefit, for the purposes of regulation 5 of the Housing Benefit Regulations 2006(10) and regulation 5 of the Housing Benefit SPC Regulations, so that the Housing Benefit Regulations 2006 apply to the assessment of the award.

So this both sets out that the HB Regs 2006 apply in such a case but also that the older partner is treated for the HB award as if they haven’t reached SPa.

As such, when looking at reg.A13(2)(d), this states:

d)where the claimant or the claimant’s partner has attained the qualifying age for state pension credit, or where both have attained that age;

As the older partner is treated as not having attained SPa under Art.8(2)(b), they’re also treated as not satisfying the condition in reg.A13(2)(d).

Paul_Treloar_AgeUK - 29 October 2019 12:17 PM

I believe their reasoning is as follows Will.

Art.8(2)(b) states (my emphasis):

(2) Where this article applies, the member of the mixed-age couple who has attained the qualifying age for state pension credit is, for the purposes of an award of benefit referred to in the following sub-paragraphs to that member, to be treated as—

(b) not having attained that age for housing benefit, for the purposes of regulation 5 of the Housing Benefit Regulations 2006(10) and regulation 5 of the Housing Benefit SPC Regulations, so that the Housing Benefit Regulations 2006 apply to the assessment of the award.

So this both sets out that the HB Regs 2006 apply in such a case but also that the older partner is treated for the HB award as if they haven’t reached SPa.

As such, when looking at reg.A13(2)(d), this states:

d)where the claimant or the claimant’s partner has attained the qualifying age for state pension credit, or where both have attained that age;

As the older partner is treated as not having attained SPa under Art.8(2)(b), they’re also treated as not satisfying the condition in reg.A13(2)(d).

Thanks Paul…whilst I see their logic, I also think you could read it with the emphasis on ‘for the purposes of regulation 5’ - which to me reads as if HB Regs 2006 apply but that the treatment as below SPA is only for the purposes of reg 5 of both sets of regs. Then it says ‘so that the HB Regs 2006 apply to the assessment of the award’ (though these regs would apply anyway where IS/ibJSA/irESA were continuing).

I’m still not convinced - & I’m not sure the drafting is clear enough - be interested to know what others think. However, I assume what DWP think is that there’s a link between ‘treated as not having attained that age’ and ‘the assessment of the award’  meaning the whole award has to be assessed as if below SPA.

WillH - 29 October 2019 12:47 PM

[Thanks Paul…whilst I see their logic, I also think you could read it with the emphasis on ‘for the purposes of regulation 5’ - which to me reads as if HB Regs 2006 apply but that the treatment as below SPA is only for the purposes of reg 5 of both sets of regs. Then it says ‘so that the HB Regs 2006 apply to the assessment of the award’ (though these regs would apply anyway where IS/ibJSA/irESA were continuing).

I’m still not convinced - & I’m not sure the drafting is clear enough - be interested to know what others think. However, I assume what DWP think is that there’s a link between ‘treated as not having attained that age’ and ‘the assessment of the award’  meaning the whole award has to be assessed as if below SPA.

Unless and until we come across a MAC affected and who want to challenge up to UT, I can’t see a way around this at the moment.

And btw, I see what you mean about the reg.5 reference and would tend to agree with your interpretation.

Cheers Paul. I don’t have such a case at the moment. I’m burrowing away at all this again whilst preparing training. But you never know - if I do come across anyone….

interestingly, this is mentioned in Northgate’s release 6.20.1;

WMS 154180 SSSC is not Applied on Claims with IS/JSAIB/ESAIR or UC Following MAC Changes
When the older member of a couple becomes pension age and the younger member of the couple is in receipt of a pass-ported income type, such as, Income Support, Job Seekers Allowance Income Based , Employment and Support Allowance Income Related etc. the social sector size criteria restriction should still apply. Since the introduction of Mixed Age Couple legislation it has been identified that the restriction has been lost in these types of claims.

Most councils are in the process of or have just loaded this release so it won’t be long before more cases come to your attention.

That sounds to me like Northgate covering for an error in their system which has always been there.  For the avoidance of doubt:

- before 15 May this year, mixed age couples were never subject to the HB bedroom tax under any circumstances by virtue of either (i) not being covered by the working age HB Regs at all, or (ii) where the working age regs did apply, Reg A13(2)(d)
- since 15 May 2015, depending how you read Article 8(2) of the No 31 Order, it is possible to argue that mixed age couples with an SDP and with the older member of the couple in the claimant role are subject to the bedroom tax.  I do not think that is the correct interpretation but it is the official one proposed in Circular A9/2019
- but even if that interpretation is correct, it is only that very limited cohort* who would be affected by the bedroom tax.  In any other case, mixed age couples getting HB under the working age regs are still exempted by Reg A13(2)(d).

If Northgate thinks that mixed age couples generally are subject to the bedroom tax they are very wrong indeed.

[*and frontier workers as well, but I doubt that there is even one frontier worker in Great Britain claiming HB as part of a mixed age couple]