Maternity allowance v new style ESA/UC
I have a client who went full term in pregnancy but unfortunately the baby was still born.
Prior to birth the client claimed SSP as they were too ill to work. What ever the reasons the client was then told by the employer to claim M.A instead of SMP. In amongst this they made a claim for Universal credit, (UC).
Long story short they still have an open case for UC but getting nil income. They are under 35 and because of circumstances are restricted to shared room rate. M.A is counted in full for income and because of circs there is no money apart from the M.A. The client is in rent arrears now.
I feel whether or not they have been miss-advised they may be able to claim new style ESA or contribution based ESA. They have worked and paid N.I in the UK for 11 years until these last couple of months. There is also a link back to the SSP period.
There is the overlapping benefit issue but QBC implies M.A would stop if they got a sick/fit note and reassessed under ESA. This then gives £50+ per week and whilst they are on paper £5.50 worse off per week they would be able to make a claim for discretionary housing payments. (DHP) which would help immensely.
Could anyone confirm I am right. please.
I feel there is enough evidence for the support group as the client is greatly affected by this and in any event exceptional circs.
all comments greatly appreciated.
I’m not sure there’s enough information here - it’s pretty case specific. How much MA is she getting? When will it stop? Is she under 25? What’s the appropriate LHA rate? Presumably there’s no partner?
Sounds likely that her SSP during the pregnancy meant her earnings in the period over which they are averaged for SMP weren’t high enough. Happens all the time, & is very unfair where a woman has then to claim UC because MA is taken into account £1 for £1 and not treated as earnings.
She’d have to completely stop claiming MA for this to work (because otherwise cont ESA would just be topped up by the balance of the MA).
UC doesn’t take benefits (other than retirement pension) into account as notional income so… maybe. But why not just stop claiming MA?
The only reason to claim cont ESA instead (since it also reduces UC £1 for £1) is for the superior NI credits, although that may well be worth doing.
I can’t see anything to stop her from submitting sick notes & asking to be referred to a WCA within UC, whether she gets MA, ESA, or no earnings replacement benefit at all?
Finally, on the subject of MA if she does continue claiming, I know Maternity Action & CPAG were looking for a test case about the disadvantage of ending up on MA rather than SMP when it comes to UC. I don’t know if they have found a claimant for this as yet.
Thank you all for your comments and support.
If I can try to answer the points raised. Firstly M.A is £148.68 per week. The client started getting this late May 2019 and due to end January by my calculation. The client is over 25 but under 35. The LHA rate applied is shared room rate and there is no partner now.
In respect to the LHA rate I wonder if there is a challenge here because if the baby had survived then the client would not have been disadvantaged by the LHA and so would have received appropriate help with rent as well as the child element of UC. The client effectively has been allowed the entitlement for M.A etc but disadvantaged on rent. Surely this is wrong There ought to be discretion at least during the M.A allowance period. Not only has the client been bereft of their child but kicked in the teeth as well by the benefits system.
With respect to the SMP v MA I feel the employer got it wrong, however the rate of benefit would have likely been the same now. I feel the employer has disadvantaged the client as well. Using 23 weeks worth of pay slips and P60’s I feel the employer has dodged out here.
If the MA is stopped in favour of ESA is there a route back if it doesn’t work? Or I would assume if not then the client would be entitled to UC on the means tested route because there would be no MA.
I know that by venturing down this route the client on paper is worse off by around £5.50 per week but the door is open then for DHP and DCTS if applicable.
Ultimately it is the clients choice and they may decide to stay as they are but UC does disadvantage people and especially in this case where I also believe it is discriminatory because a man cant be in this position. I just got to hope the doctor will be sympathetic now!
I will certainly look to give information to CPAG and will discuss with my client tomorrow.
Goodness lots of things to consider
thank you everyone who commented