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Is UC only option if ESA stops?
Client sectioned and been in hospital for a for a couple of years. Capital now above £16k and DWP have advised ESA will stop completely due to Capital level and not enough NI contributions. Is UC the only avenue for benefits now for my client?
If your client has capital above £16k which isn’t disregarded then he won’t qualify for UC either as its a means tested benefit. The expectation is that he lives off his capital until it depletes below £16k.
Client sectioned and been in hospital for a for a couple of years. Capital now above £16k and DWP have advised ESA will stop completely due to Capital level and not enough NI contributions. Is UC the only avenue for benefits now for my client?
I don’t understand the reference to NI contributions. If the claim is entirely income based it stops as a result of breaching the capital limit.
Client sectioned and been in hospital for a for a couple of years. Capital now above £16k and DWP have advised ESA will stop completely due to Capital level and not enough NI contributions. Is UC the only avenue for benefits now for my client?
I don’t understand the reference to NI contributions. If the claim is entirely income based it stops as a result of breaching the capital limit.
Presumably in reference to no entitlement to contributory ESA or new style ESA.
Has a PIP claim been made for this person, if they have been in hospital for two years then I’d say they’ll probably have an entitlement of some sort and although it won’t be paid whilst they remain in hospital, it could help with resettlement if/when they are discharged back to the community as it could come into payment then.
PIP is in place but as you quite rightly say they are not receiving due to admittance to hospital under Section.
My concern is that due to ESA stopping should I be applying for Universal Credit.
Although Capital is above £16k should client still not receive some funds?
Thank you all for the comments - much appreciated as always
I have a very similar case. Client has accrued capital, has come out of hospital and DWP have asked for his bank statements. He’s on PIP and ESA (but I can’t find a conts-based award), and is currently in receipt of ESAir and HB (the ESA is paid with the SDP, albeit that he’s receiving it erroneously.
His capital will exclude him from all means-tested benefits, but, working out roughly his overpayment, if he paid it back straight away, his capital would again be below the threshold.
But would this be too late?
If he had been in receipt of ESA with an SDP and was able to reclaim within the month, would it be accepted? Would his lack of capacity make any difference?
Is there any hope?
TIA
I think that’s a fairly awkward situation to navigate.
At the moment he would on the bare face of it appear to be entitled to ESA with the SDP - but you know for a fact that he isn’t really and DWP will discover this. If he remains above £16k when the decision is made, then his entitlement to ESA will be cease and his disentitlement will be from the point at which he accrued the capital. He won’t be able to rely on the one month rule in the SDP gateway because the disentitlement will be “backdated” by at least a month (and probably much further than this by the sounds of it).
If his capital were to drop below £16k by the point at which the decision was taken, then he would be entitled at that point in time and it would be possible for a closed period supersession to be done and therefore for ongoing ESA entitlement to be retained. But if he just spends the money specifically with this in mind, its a deprivation and it will be taken into account anyway.
Were the capital to be spent reducing a debt owed to the DWP, then it is unlikely that they would make a deprivation decision - but you have a chicken and egg problem because for the plan to work you need the capital to be depleted before the decision is made, but you need the decision to be made for there to be an overpayment to pay off. Hypothetically your client could make some sort of payment to the DWP on account of a possible overpayment, but this is not something I think is likely to be practically realistic. You also don’t know if DWP will ultimately decide that the overpayment is recoverable (your client’s lack of capacity may be a factor here…).
I suspect that your client is going to need to live off their savings for a while and then claim UC in the future when their capital naturally depletes.
Perhaps aim to get ESA to make their decision and pay off the overpayment before HB hear about it and make their decision. He could then reclaim ESA (due to the SDP in the HB).
There is though a possibility that he may want to fight the ESA overpayment and argue that it shouldn’t be recoverable as Elliot mentions. Perhaps he can make that argument after paying it off?
Thanks both.
Sadly, the accumulation of capital was one of the issues in his mental health breakdown(£11k was found about his person when he was sectioned- on top of what was banked). And this was put back into his account while he was still in hospital.
He says he’s drawn about £3k since coming out of hospital and “is paying his rent, and arrears”.(which, of course, he doesn’t yet owe).
As Elliot says, it’s a chicken and egg - and the disentitlement is likely to go back several months. Ii haven’t been able to pin down from what date he tipped the £16k, which makes the offer of anything like an accurate payment upfront to DWP impossible at the moment, even if they would accept it.
I could give Charles’ suggestion a try, although similarly the timing will be difficult.
Your input, as always, is soo helpful. Thank you
Elaine
Charles suggestion is definitely valid and would certainly earn bonus points for style, but in practice there are an awful lot of moving parts which need to fit together in just the right way.
Charles suggestion is definitely valid and would certainly earn bonus points for style, but in practice there are an awful lot of moving parts which need to fit together in just the right way.
You’re right Elliiot. And I know that DWP notifications are dealt with very quickly by our HB team. I’ll give it a try and post if it’s successful
I must admit, I’m not entirely comfortable with the idea of advising a client of how they might game the system as suggested. The fact is that, as things stand, the client isn’t entitled to either ESA or HB because their capital exceeds the threshold and the fact there’s an overpayment likely doesn’t have any material impact on the advice I’d be giving them to that effect. The suggestion that the client might not have capacity if anything makes the need to be crystal clear in any advice given even stronger.
if your customer is liable to pay rent, then can he make a rent payment of say 6 or 12 months rent to reduce the capital? Does he owe any council tax? or again, make a payment?
if he gets these benefits, and his capital exceeds for a period, theose periods will be reassess and Hb/CTSupport entitlemenr removed. but for the periods his capital was over £16k, but , crucially, him paying the rent and council tax “in advance” means that his capital will hopefull fall below £16k so that, at the point ESA and HB look at it, its back below £16k., so it becomes a closed period superssion and Hb entitlement continues…
The “credit” on his rent account and ctax account will be a cushion which will help absorb the overpayments which are on the way.
Hope that helps
paying a priotriy debt ( rent and ctacx) is never depravation of capital
In response to the last post I’d make two points:
1. In my view, paying advance rent and council tax can hardly be considered paying priority debts - surely you can’t be considered to be in debt with regard to council tax for next year, which isn’t even due yet. It’s not a debt until it is owed.
2. Even if there are historic debts, I don’t know any authority for the assertion that paying off priority debts can never be considered deprivation. Paying off debts is probably less likely to be considered deprivation than, say, buying a yacht, but there are no guarantees that it won’t be seen as deprivation (see CPAG 504 and the cases referenced there). There may be an authority I’m not aware of, but is it possible that you are getting with the explicit regulations for people of pension age (CPAG p.526)?
In this scenario, were the claimant advised to dispose of the capital by paying advance rent, council tax etc., I think a decision maker would be very likely to (arguably rightly) infer that at least one of the intentions of the claimant was to deprive themselves of capital in order to secure entitlement to means-tested benefits.
I think as welfare rights advisers we need to be very cautious about telling people what they can or should do with their capital (in other words, I don’t think we should be doing it at all), and it’s always very difficult in deprivation cases to second guess how a decision maker is going to interpret someone’s expenditure. All we can do is explain the rules regarding deprivation and explain that ‘intention’ is the key question, and it’s always very hard to judge what someone’s intentions were when spending some money. True, we can perhaps say that spending the money on a or b may be less likely to be viewed as intention to deprive than y or z, but that’s about as far as we can go with it in my view.
Cheers
Alex
Cheers
Alex
I think as welfare rights advisers we need to be very cautious about telling people what they can or should do with their capital (in other words, I don’t think we should be doing it at all), and it’s always very difficult in deprivation cases to second guess how a decision maker is going to interpret someone’s expenditure. All we can do is explain the rules regarding deprivation and explain that ‘intention’ is the key question, and it’s always very hard to judge what someone’s intentions were when spending some money.
Although not relevant to this thread one good feature of UC Regulations is explicit regulation that says paying off debt is not deprivation of capital.