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Reopening legacy benefit claim with a UC claim (no entitlement) in the interim  

JPCHC
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Cardinal Hume Centre - Welfare Rights

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Apologies in advance for trying to resurrect this thread but I am still struggling with this…
https://www.rightsnet.org.uk/forums/viewthread/14387/

Is there any clarity on this yet? Any guidance? I know it’s probably wishful thinking!  Is the consensus that an IRESA claim could be reopened and paid pending appeal despite unsuccessful UC claims in the interim (no entitlement)?

I have just had a call back from the Payment Pending Appeals team who are adamant that it cannot be reopened becuase of a “UC interest”, even though there was no entitlement.  I struggled to argue this one out as I can’t follow the argument myself!

Thank you in advance

Charles
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I am assuming you are attempting to get the new ESA award to start before any UC claim was made. (This is generally the case, as it normally starts the day after the last day of the ESA award being appealed.)

I don’t know of any guidance issued, but I am firmly of the belief that an award can be made. I will refer to the No. 9 Commencement Order here, but the same applies to all the other Commencement Orders, which either contain equivalent provisions, or refer directly to the No. 9 Order.

1. Article 4 is what abolishes old-style ESA when a claim is made for UC.

2. Paragraphs (2)(a) and (g) of that Article, insofar as they discuss a claim for ESA, do not apply, as no claim for ESA is being made here. (See paragraph 02009, bullet point 15 here.

3. During the period when the claim for UC subsisted, old-style ESA will be abolished (Paragraph (2)(a)), however, as no claim is necessary for an ESA award made pending appeal, another award can, and should, immediately be made starting the day after the UC claim was decided and refused.

4. Even if there is also a contributory element to the ESA award, which potentially brings Paragraph (9) into play, this would not be the case for an award made pending appeal, as it is not included in the list in Paragraph (10).


Going forward, you can appeal this refusal to make an award - see Reg 26(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 and Reg 3(1)(j) of the Social Security (Claims and Payments) Regulations 1987.

[ Edited: 13 Jun 2019 at 04:27 am by Charles ]
HB Anorak
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The problem with a lot of these cases is that the claimant was on HB before the first negative ESA decision.  HB correctly terminated when UC was claimed (assuming no outstanding queries about basic conditions (a) to (d)) and there doesn’t seem to be any way of reinstating it:

- no new HB claim allowed
- on what grounds would the termination decision be revised?

WR Adviser
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In a similar vein, what are people’s thoughts on this: a claimant is getting CTC and CA.  She part owns a property which is rented out.  If she claims UC and it is refused due to capital (we may put a case for disregard) would this stop her CTC regardless of whether she gets UC or not?

Charles
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Unfortunately this would stop her CTC. Unless there is some other reason she is not entitled to UC?

WR Adviser
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Charles - 17 June 2019 12:04 PM

Unfortunately this would stop her CTC. Unless there is some other reason she is not entitled to UC?

The valuation of the capital is a grey area in this case so we are not clear if the case we could put forward would succeed.  Prior to UC we would have simply advised her to make the claim and we argue if refused as there is nothing to be lost.  But clearly we do not want to advise her to claim UC if there is a risk of the CTC stopping even if UC is refused (due to the capital).  There is no other reason why UC would be refused.

Charles
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This is the position, unfortunately.

A poster on these forums (I think Mark Willis) has suggested there could be a possibility to reclaim CTC after it is terminated as long as she had been entitled to CTC in the previous tax year. However, you would have a fight on your hands to get HMRC to agree to that!

JPCHC
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HB Anorak - 14 June 2019 10:03 AM

The problem with a lot of these cases is that the claimant was on HB before the first negative ESA decision.  HB correctly terminated when UC was claimed (assuming no outstanding queries about basic conditions (a) to (d)) and there doesn’t seem to be any way of reinstating it:

- no new HB claim allowed
- on what grounds would the termination decision be revised?

Fortunately, it is an HRT disallowance so HB wasn’t correctly terminated and our LA has reinstated benefit without too much trouble in previous cases.  But in those cases we were able to argue that the client had a qualifying R2R for HB purposes so could be assessed on nil-income.

In this case, we will struggle to argue on R2R so would really need HB based on a passporting benefit. But if they do reopen ESA pending appeal (after UC claim closed as Charles advised), then I am not sure of the position for HB as there will be a gap where there was no entitlement and he can’t make a new HB claim.

Thanks in advance for any thoughts.