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Mixed age couple on Housing Benefit on 14 May 2019

Paul_Treloar_AgeUK
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Having a brain fade moment. Mixed-age couple where youngest partner is claiming HB on 14 May 2019 and unbroken entitlement ever since, only other benefit in payment is PIP for him.

How do we know this is a pension-age HB award despite the younger partner being the claimant?

We want to make a PC claim which I am sure they can now but the issue of younger partner claiming HB has confused me?

Any assistance gratefully received as always.

HB Anorak
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Look at Reg 5 in both sets of HB Regs.  What it means in plain English is that HB is paid under the SPC version of the Regs if either member of the couple has reached SPC age, unless the younger partner is on working age DWP benefit.  It doesn’t matter which of them is the HB claimant, the above works either way round.

Paul_Treloar_AgeUK
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Thanks Peter, that’s what I was thinking, I was just confusing myself due to the reference to a “person” rather than either of the couple but the working-age HB regs do make it clear.

It’s been a long week.

HB Anorak
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I agree, “person” makes it tricky to parse, but if it meant anything different from what I said above there would be certain combinations not subject to either set of regs!

Charles
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The legislation suggests the saving only applies to the HB claimant, not to the partner. That would mean a PC claim could not be made in this case.

I have no idea what happens in practice though.

Paul_Treloar_AgeUK
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Charles - 03 July 2020 04:40 PM

The legislation suggests the saving only applies to the HB claimant, not to the partner. That would mean a PC claim could not be made in this case.

I have no idea what happens in practice though.

But equally, the working age regs also suggest that a MAC can’t have a working-age HB award if there’s no legacy benefit also in payment, so as Peter suggests, the legislation is a bit of a mess. Certainly, at least, the policy intention is that they can apply for PC and most people get there in the end thank goodness.

HB Anorak
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Sorry, just noticed the follow-up posts after mine.  I have only part answered your question, and the bit I’ve missed is the most important part: establishing that the HB claim is currently subject to the SPC age regs is only half the job, we also have to show that there is a transitionally protected right to claim SPC.  I agree with Charles that the savings in the No 31 order only work if the prospective SPC claimant is personally entitled to HB.  If Article 4(1) is applied strictly in this case, the older partner won’t be able to make a new SPC claim.  Which makes it something of a lottery depending on one arbitrary variable.  They might get lucky if DWP SPC department don’t dig too deeply and just see that there is a couple with a long standing HB award.

Paul_Treloar_AgeUK
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But if that’s the case, are they in a hole?

Reg. 5 HB(SPC) Regs only applies if person is over SPA.

Reg 5 HB Regs explicitly doesn’t apply if partner of HB claimant is over SPA and isn’t claiming a legacy benefit, my emphasis:

Persons who have attained the qualifying age for state pension credit
5.—(1) These Regulations apply to a person who—

(a)has not attained the qualifying age for state pension credit; or
(b)has attained the qualifying age for state pension credit if he, or if he has a partner, his partner, is a person on universal credit, on income support, on an income-based jobseeker’s allowance or on an income-related employment and support allowance].
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Except as provided in paragraph (1) , these Regulations shall not apply in relation to any person if he, or if he has a partner, his partner, has attained the qualifying age for state pension credit.

I’m sure I remember you saying that some change was made in the not too distant past to clarify that MAC’s claiming HB prior to 14 May 2019 were by definition claiming under the pension-age regs but can’t remember what it was Peter?

HB Anorak
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We are on the same page as regards the HB(SPC) Regs applying to any mixed age couple except where either partner is on IS etc:

- irrespective of which partner is the HB claimant, the HB(SPC) Regs apply where either member of the couple has reached SPC age.  Unless
- irrespective of which partner is the HB claimant, the working age HB regs apply if either member of the couple is on a working age DWP means-tested benefit

This means the HB(SPC) Regs apply to the couple mentioned in the first post at the top of this thread.  But you then went on to ask a follow-up question which I missed (always read to the end, when will I learn?  Charles always reads to the end!).  Can they get onto SPC?  The problem with that is the SPC claimant must be the older partner - no-one under SPC age can be entitled to SPC.  But a member of a mixed age couple can only be entitled to SPC if the saving in Article 4 of the No 31 applies:

4.—(1) Subject to paragraph (2), the 2002 Act shall have effect as though section 4(1A) (exclusion of mixed-age couples from state pension credit) had not come into force in relation to a member of a mixed-age couple who, on the day before the appointed day and as part of that couple, is entitled to—
...
(b)housing benefit;

The saving is not engaged because the prospective SPC claimant who needs to fall within Article 4(1) is not “entitled to” HB.

Now, whether DWP knows or cares about any of that is another question and it may be that the claim will be accepted.

Paul_Treloar_AgeUK
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I’m not convinced by that reading.

Subject to paragraph (2), the 2002 Act shall have effect as though section 4(1A) (exclusion of mixed-age couples from state pension credit) had not come into force in relation to a member of a mixed-age couple who, on the day before the appointed day and as part of that couple, is entitled to—

(a)state pension credit;
(b)housing benefit; or
(c)state pension credit and housing benefit.

Subject to para.2 (which doesn’t apply here),  the 2002 Act (the State Pension Credit Act) shall have effect as though section 4(1A) of the Welfare Reform Act 2012 had not come into force in relation to a member of a mixed-age couple who on the day before the appointed day and as part of that couple is entitled to HB (with the HB award necessarily being an award of pension-age HB under the interpretation in Article 2).

Well, that’s clearly satisfied here, the younger partner was claiming HB as part of a MAC on 14 May 2019 and no legacy benefit in payment, so it must be a pension-age HB award.  In turn, this means under the above, then the State Pension Credit 2002 is unaffected by sec 4(1A) of the WRA and so the exclusion of the older partner from claiming PC in these circumstances doesn’t apply.

Article 4(1) doesn’t stipulate which member of the MAC needed to be claiming pension-age HB, merely that if they were claiming HB before the appointed day, then sec. 4(1) doesn’t apply. If sec. 4(1) doesn’t apply, then sec.4 of the SPC Act isn’t amended to exclude MAC’s from entitlement to PC.

HB Anorak
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I see what you are saying, and it’s worth an appeal by someone who has nothing to lose because they won’t qualify for any or much UC (so the consequences are either get some PC or don’t and just carry on as you were).  But I don’t think, as regards s4A of the SPC Act, anyone other than the SPC claimant personally is in scope.  The younger partner of an SPC claimant doesn’t own any kind of stake in the SPC claim, the SPC Act doesn’t actively apply to him/her.  The way I read it there is one SPC claimant who personally owns the SPC claim and who must personally satisfy Article 4(1) of the No 31 Order.  But worth a challenge for sure

Paul_Treloar_AgeUK
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Got to try and get the claim made first, let alone a decision to challenge.

On your point on the SPC Act, completely agree that it’s only the older partner who can make the PC claim but on it’s own terms, for a HB-only award, then I’d argue Art.4 does apply on a simple reading, which disapplies changes to remove MAC’s under sec.4 of the SPC Act, which in turn enables the older partner to make the PC claim.