ESA lost and refusal to claim UC

Hi all, we have a claim from someone who lost their ESA last year.  A nil income statement was made at that time, which we accepted and continued to pay HB based on nil income.  We have recently requested an update and why he has not claimed UC.  His response ‘I’m not claiming UC as I will lose my HB then’.

My question, can his refusal to claim UC mean that we can continue to pay HB until such time that managed migration shifts him to being forced to claim UC?  I have read (and re-read) Reg 42 (HBR) and am still unsure what to do (if anything).

Any views would be gratefully received.

Absolutely. He is perfectly entitled to do this.

The only thing which will stop his HB (other than the usual) is if he actually chooses to claim UC.

Edit: In my rushed response earlier, I had missed the significance of reg 42 which of course relates to notional income. So I can see that the question is more related to whether you ought to treat the claimant as though they had access to income from UC even though they don’t which would then probably put them on too high an income to qualify for HB - rather than the question of whether their HB should formally be stopped in these circumstances.

I haven’t seen any cases where notional income rules have been used in this way and it is not something which has been suggested in any of the various threads on this topic on these boards. I will think about this and imagine that more knowledgeable people will beat me to it…

I think your answer might be simply that UC is disregarded as income under Sch 5, para 4 so couldn’t be used as the basis of a reg 42(2) decision as per the notes at page 453 of Housing Benefit Legislation 18/19.