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Mixed Aged Conundrum

AlanRAISE
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RAISE Benefits Advice Team, Liverpool

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I have a mixed age couple in circumstances that I’ve not really come across before.

They’re currently both in receipt of individual claims for CB ESA in the Support Group on both claims, along with HB - there’s no income based top-up currently.

The older of the couple has received confirmation of what her SRP will be once she meets pensionable age in October - it’s around £180 per week, so there still wouldn’t be any income based top-up on the ESA.

From what I’ve read I don’t believe there should be any issues staying on Housing Benefit - but I’m not 100% sure as I can’t find any specific examples related to claimants on CB ESA that don’t have SDPs in place.

Be grateful for input, before I get back to them.

Kurtk
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Pennine West Citizens Advice Bureau

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Have a look at: A9/2019 Mixed age couples: further guidance (revised) (https://www.gov.uk/government/publications/housing-benefit-adjudication-circulars-2019/a92019-mixed-age-couples-further-guidance).  This has some specific examples, including one (under the heading ‘Mixed age couple in receipt of HB only’) which I think may be relevant to your couple’s circumstances.  I hope that this is of some use.

Paul_Treloar_AgeUK
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Information and advice resources - Age UK

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HB award will end I’m afraid. The savings provisions only apply to people who reached SPA before 14 May 2019, if you reach SPA after that date, the working age HB award stops when the older member reaches SPA.

This is from an email advice I did this morning on similar case.

There are two types of Housing Benefit, that which is payable to working-age claimants under the Housing Benefit Regulations 2006 (Working age HB) and that paid to people over SPA under the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 (Pension age HB). To be covered by the savings provisions that are contained in Article 4 of the Welfare Reform Act 2012 (Commencement No. 31 and Savings and Transitional Provisions and Commencement No. 21 and 23 and Transitional and Transitory Provisions (Amendment)) Order 2019 (CO31), the HB award must have been in payment on 14 May 2019 (which it appears it was in your client’s case) but also must be made under the Pension age HB regulations (which cannot have been the case).

This is because of Article 2(3) of CO31 where the definition of HB is made explicit:

(3) Save as stated to the contrary in article 6(2) and article 8(2)(b), all references in this Order to claims or entitlement to housing benefit are to claims or entitlement under the Housing Benefit SPC Regulations only.

As such, Article 4 of CO31, which covers the savings provisions, does not apply to your client. We know that he was receiving Working age HB on 14 May 2019 because of Regulation 5 of the Pension age HB Regulations which states that:

Persons who have attained the qualifying age for state pension credit
5.—(1) Except as provided in paragraph (2), these Regulations apply to a person who has attained the qualifying age for state pension credit.

(2) These Regulations shall not apply in relation to any person 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.

Regulation 5(1) states that the Pension age HB Regulations only apply if a person has reached SPA. Your client hasn’t reached SPA yet.

On 14 May 2019, your client had not reached SPA, so the Pension age HB regulations cannot have applied to the HB award, and therefore we know it was a Working age HB award, which is not covered by the savings provisions. As there is no SDP entitlement with either the ESA or HB awards, then the SDP gateway provisions also do not apply here.

As such, under Article 6 of CO31, their current HB award should terminate when he reaches SPA:

Transitional provision: termination of awards of housing benefit
6.—(1) The awards of housing benefit referred to in paragraph (2) are to terminate on the day referred to in paragraph (3), subject to paragraph (4).

(2) The awards are those where entitlement under the Housing Benefit SPC Regulations as part of a mixed-age couple begins on or after the appointed day and where the awards are made—
(b)at any time, under the Housing Benefit Regulations 2006, to a person who is a member of a mixed-age couple, where the award subsequently ceases to be subject to those Regulations and becomes subject to the Housing Benefit SPC Regulations; or
(3) The termination takes effect—

(a)in the case of an award referred to in paragraph (2)(a) or (b), on the later of the appointed day and the day entitlement under the Housing Benefit SPC Regulations as part of a mixed-age couple takes effect on the award, as a change of circumstances, in accordance with the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001

Article 6(1) states any HB award covered in para.2 is to terminate on a date referred to in para.3, the provisions in para.2(b) are where a HB award would otherwise shift from being a Working age HB award to a Pension age HB award (which is what has effectively happened in your client’s case, and para.3 states the termination takes effect when he reaches SPA.

I should highlight that there have been arguments raised on here about whether the wording of this provision actually carries the legal force to terminate the Working age HB award – this is because Art.6(2)(b) states it applies to a mixed-age couple claiming Working age HB which by definition is impossible until the older partner reaches SPA.  HB Anorak or Charles might be able to advise on how you might be able to advise your clients to appeal on that point?

[ Edited: 21 Aug 2020 at 03:41 pm by Paul_Treloar_AgeUK ]
Paul_Treloar_AgeUK
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From the Annex A of the A9 HB Circular, you can also note this:

Mixed age couple in receipt of HB only
Where a working age couple are in receipt of working age HB only and the older member of the couple reaches State Pension age becoming a mixed age couple on or after 15 May 2019, the mixed age couple will no longer be able to continue to receive HB and should be signposted to UC.

The LA should ensure that the mixed age couple are notified that their working age HB claim will be closed and they should make a new claim to UC. To ensure that the claimant will still receive the transition to UC Housing payment the claimant should be advised to make their claim to UC before they reach State Pension age. This signposting to UC can take place up to 4 weeks prior to a claimant’s birthday so that they will continuously receive help with their housing costs.

When the claim to UC has been made the HB stop notification will be sent to the LA. The LA will need to make the transition to UC Housing payment, close down the HB claim and complete and return the MGP1 to the UC service centre.

Where there is no claim to UC, the LA will close down the HB claim when the older member of the couple reaches State Pension age.

Example 4
Glen and Caroline are a working age couple who have been in receipt of working age HB only continuously since 17 March 2017. Glen reaches State Pension age on 6 July 2019. The LA will inform the claimant that their HB claim will close as they are now a mixed age couple. If the mixed age couple require continued assistance they should be signposted to make a new claim to UC. If the HB claim has not yet closed before the UC claim is made, then a 2-week transition to UC housing payment can be made.

Ianb
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Macmillan benefits team, Citizens Advice Bristol

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Another reason why it could be important for UC claim to be made before older partner reaches pension age is that this would ensure they get the LCWRA element in their UC entitlement. If claiming after reaching SP age the ESA would already have stopped and not be continuous with UC and therefore LCWRA would not be transferred across. In this case that is not an issue as partner also gets CB-ESA and only one LCWRA element can be included.

If younger partner gets relevant disability benefit older partner can of course ask for carer element to be included.

[ Edited: 21 Aug 2020 at 04:35 pm by Ianb ]