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Forum Home  →  Discussion  →  Benefits for older people  →  Thread

Pension Credit and mixed aged rules

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roecab
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Dear All,

We have client, in receipt of Pension Credit, with his wife on the claim.

It has not paid at the couple rate, as she had NRPF - she now has recourse, and he has aksed to be paid as a couple - we feel that this is a change in circumstances that would not require a new claim.

PC disagree with it, and say no that it has to be new claim to UC, under the mixed aged rules and have stopped the PC claim.

However, he had to provide all her details when he claimed, but as noted not paid, rightly, as a couple - so is it not the case that they should simply remove the NRPF condition and add her - it is not a new claim to PC?

Can someone confirm if it would be UC or not?

Many thanks

roecab
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looks like this is the issue?

Regulation 5(1)(h) -

(1) A person is to be treated as not being a member of the same household as the claimant if…...(h) he is a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999

https://www.legislation.gov.uk/uksi/2002/1792/regulation/5

And so now she has become part of the household, this means they do need to claim UC?

Just seems unfair, which means it is probably correct!

Again any ideas/confirmation most welcome.

HB Anorak
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I think you are probably right.  There is a tenuous counter-argument but I am not very confident about it.

Article 4 of the No 39 Commencement Order preserves SPC entitlement for a mixed age couple where the SPC claimant “on the day before the appointed day and as part of that couple, is entitled to—  (a) state pension credit;

I think the correct interpretation is that a claimant with a PSIC partner is not entitled to SPC as part of that couple because the partner is treated for SPC purposes as if s/he is not part of the household and, accordingly, not part of a “couple” as defined in s17 of the SPC Act.

The (rather hopeful) counter-argument is that the deeming fiction in Reg 5 applies only for the purpose of determining the amount of the appropriate minimum guarantee and the income/capital to be used - once entitlement has been calculated on that basis, the claimant is entitled to SPC as part of that couple for the purpose of Article 4 of the Commencement Order.  I would give that argument about a 15% chance of success, but get the right judge on the right day ...

Paul_Treloar_AgeUK
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HB Anorak - 27 November 2020 05:20 PM

I think you are probably right.  There is a tenuous counter-argument but I am not very confident about it.

Article 4 of the No 39 Commencement Order preserves SPC entitlement for a mixed age couple where the SPC claimant “on the day before the appointed day and as part of that couple, is entitled to—  (a) state pension credit;

I think the correct interpretation is that a claimant with a PSIC partner is not entitled to SPC as part of that couple because the partner is treated for SPC purposes as if s/he is not part of the household and, accordingly, not part of a “couple” as defined in s17 of the SPC Act.

The (rather hopeful) counter-argument is that the deeming fiction in Reg 5 applies only for the purpose of determining the amount of the appropriate minimum guarantee and the income/capital to be used - once entitlement has been calculated on that basis, the claimant is entitled to SPC as part of that couple for the purpose of Article 4 of the Commencement Order.  I would give that argument about a 15% chance of success, but get the right judge on the right day ...

Sorry but I don’t think it’s arguable at all.

From Article 2(4):

(4) In this Order—

(a)a person is entitled to state pension credit or housing benefit on any day where the person has made a claim for that benefit and the conditions of entitlement are met in relation to that person, regardless of whether, respectively, entitlement begins on a later day under—
(i)regulation 16A (date of entitlement under an award of state pension credit for the purpose of payability and effective date of change of rate) F13 of the Social Security (Claims and Payments) Regulations 1987; or
(ii)regulation 57 (date on which entitlement is to commence) of the Housing Benefit SPC Regulations; and
(b)[F14save in article 7(3)(a),] a reference to claiming or entitlement to state pension credit or housing benefit as part of a [F15mixed-age] couple is a reference to [F16a person claiming or] being so entitled, on the basis that [F17the person] is a member of a couple or F18… a polygamous marriage.

The provisions that have enabled the client to claim as a single person are in Article 7 and are quite explicit that the current PC award is made on the basis he is a single person:

(3) Where this paragraph applies and the qualifying age for state pension credit has been attained by—

(a)both the parties to be treated as a couple by virtue of paragraph [F4(2)(b)(ii)], one of them may claim or remain entitled to state pension credit as part of that couple and one of them may claim or remain entitled to housing benefit as part of that couple;
(b)a party to be treated as a single person by virtue of paragraph [F5(2)(b)(i) to (iii)], that party may claim or remain entitled to state pension credit or housing benefit as a single person.

roecab
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Dear Both,

Many thanks for this

Much appreciated.

Paul_Treloar_AgeUK
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We had one of these cases recently and the client lost out ~£100 a week due to his wife being given leave to remain. It’s a crazy outcome and we couldn’t find a way around it.

HB Anorak
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Agreed, on reflection it wouldn’t stand a chance, Article 2(4)(b) does seem to be saying that someone treated as single for the purposes of Reg 5 of the principal SPC Regs is not to be treated as entitled to SPC as part of a couple for the purpose of Article 4 of the No 31 Order (sorry not 39 as I said before)

roecab
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The client was also getiting HB - based on his PC - and his HB was paid continually since before 15 May 2019, and it seems that his wife was included as his partner on that claim, as was required to add her even though she had NRPF then could this be argued?

He would be transitionally protected under Art 4(1)(b) “No 31 Order”, and so therefore should not be prevented from claiming PC as a mixed-age couple and so his wife can be added to his PC claim. His HB claim should also not end under Art 6, because as noted his entitlement to HB as a mixed-age couple began before 15 May 2019?

Paul_Treloar_AgeUK
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Sorry, edited as I have just seen your reference to wife being included in the claim. Not sure where that leaves things to be honest - hopefully Peter might be able to explain whether the HB award was properly made as a MAC.

Not sure whether this could cause retrospective problems with her immigration status, if she was indirectly receiving public funds whilst subject to a restriction?

[ Edited: 9 Dec 2020 at 02:14 pm by Paul_Treloar_AgeUK ]
roecab
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Paul,

But they claimed HB as a couple - so is there somethign that says he wouild be single?

I ask as I came across this

16. As the older partner is over pension age they cannot claim UC and would also be unable to make a claim for pension age HB because they would still be treated as a couple under HB regulations. However, amendments made by SI 2019/935 to Article 7(2) of SI 2019/37 will allow the older partner to be treated as a single person, when under normal pension age HB regulations they would still be treated as a part of a couple.

https://www.gov.uk/government/publications/housing-benefit-adjudication-circulars-2019/a92019-mixed-age-couples-further-guidance#existing-hb-claimants-under-pension-age-on-15-may-2019

Yes, he’s been made aware of the possible future issue with HO.

Thanks again

Paul_Treloar_AgeUK
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p.1563 of CPAG 2020/2021 states You are regarded as having recourse to public funds if someone else’s benefit is increased because of your presence - eg, if the amount of your partner’s HB is greater because you are included in her/his claim. If this happens, you have breached the condition not to have recourse to public funds. Obtain specialist immigration advice before making a claim.”

Obviously, that boat has passed but if might flag a need for some caution here, as you don’t want to do anything that would cause problems with her on-going right to remain.

Further, on p.1570 is states The only exception is if you are of pension age and your partner is under pension age and is a person subject to immigration control (and not covered by an exempt group). You are not required to make a joint claim for UC but, instead claim HB (and PC) and you are treated as single for your HB (and PC) claim.

However, this has only been included in this year’s edition and otherwise, it does say that a HB claim is calculated using a couple’s applicable amount etc but repeats the warning about seeking immigration advice. The additional complicating factor is the PC award passports the client to maximum HB, so the applicable amount doesn’t really come into play as such.

As such, I’m starting to wonder whether you might have the seeds of a case, and maybe you don’t need to worry about the public funds aspect because the HB award would probably have been the same whether treated as single or a couple and it does appear that the HB award might have been paid on the basis they were a mixed-age couple?

roecab
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Paul

I think this is what amends this i.e. from this year?

Amendment of the No. 21 Order and the No. 23 Order: transitional provision preventing claims for housing benefit
5.—(1) The following amendments of the No. 21 Order and the No. 23 Order have effect from the day after the day of making of this Order.

(2) For article 6(3)(a) of the No. 21 Order F21 and article 7(4)(a) of the No. 23 Order F22, substitute—

“(a)in the case of a claim for housing benefit, the claim is made by a member of a State Pension Credit Act couple who has reached the qualifying age for state pension credit, where the other member has not reached that age, and entitlement begins, or in the case of claims made in advance of entitlement is to begin—
(i)before 15th May 2019; or
(ii)on or after 15th May 2019 where one of the savings in the sub-paragraphs of article 4(1) 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 applies to that person and the saving has not ceased to have effect under article 4(2) of that Order, andentitlement to housing benefit is to be construed in accordance with article 2 of that Order;”.

https://www.legislation.gov.uk/uksi/2019/37

Ianb
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Paul_Treloar_AgeUK - 09 December 2020 02:30 PM

p.1563 of CPAG 2020/2021 states You are regarded as having recourse to public funds if someone else’s benefit is increased because of your presence - eg, if the amount of your partner’s HB is greater because you are included in her/his claim. If this happens, you have breached the condition not to have recourse to public funds. Obtain specialist immigration advice before making a claim.”

Obviously, that boat has passed but if might flag a need for some caution here, as you don’t want to do anything that would cause problems with her on-going right to remain.

I think with HB this often isn’t an issue as a couple have the same bedroom entitlement as a single person (assuming aged 35 or over). Council Tax Reduction is a potential problem because a single occupant would first have the 25% single person discount applied and the CTR provided would therefore be lower than for a couple.

roecab
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So looks arguable then - the HB and NRPF issue aside - looks like they claimed HB as a couple and so should not be caught by the rule?

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roecab - 09 December 2020 02:34 PM

Paul

I think this is what amends this i.e. from this year?

Amendment of the No. 21 Order and the No. 23 Order: transitional provision preventing claims for housing benefit
5.—(1) The following amendments of the No. 21 Order and the No. 23 Order have effect from the day after the day of making of this Order.

(2) For article 6(3)(a) of the No. 21 Order F21 and article 7(4)(a) of the No. 23 Order F22, substitute—

“(a)in the case of a claim for housing benefit, the claim is made by a member of a State Pension Credit Act couple who has reached the qualifying age for state pension credit, where the other member has not reached that age, and entitlement begins, or in the case of claims made in advance of entitlement is to begin—
(i)before 15th May 2019; or
(ii)on or after 15th May 2019 where one of the savings in the sub-paragraphs of article 4(1) 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 applies to that person and the saving has not ceased to have effect under article 4(2) of that Order, andentitlement to housing benefit is to be construed in accordance with article 2 of that Order;”.

https://www.legislation.gov.uk/uksi/2019/37

Yes absolutely, that’s why it wasn’t in any previous edition as this was one of the last minute amendments made to the regulations when we pointed out the problem to DWP.

roecab
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So to clarify - do you think it is arguable that as had HB pre May 19 - that her change means that HB continues and so can then add the partner to PC claim?