MAC and Disability Premium
I am currently supporting a MAC who live in supported accommodation and therefore need to claim HB. As a history to the case the ESA was in payment in the working age claimants name but due to other income this reduced the award down to zero and therefore their ESA claim has closed. HB was in pensioners name and it was calculated that they had nil entitlement. They are both in receipt of PIP enhanced rate DL with one getting low rate mobility and the other the higher rate mobility. We were told to put the HB claim in the working age claimants name so that HB could be calculated to include the disability premium. This has been done although HB are insistent that they should only pay the single rate DP and EDP as only one is of working age.
My reading of the rules should be that as they are a MAC they should be treated as a working age claim and therefore the DP and EDP should be paid at a couple rate regardless. I have read and provided the information from CPAG but there still seems to be an issue.
Has anyone got any experience of this or can anyone provide me with the exact regs. that show couple rate should be paid. I have tried to look for them but it seems like trying to find a needle in a haystack.
They don’t need any of those premiums at all, HB should be calculated under the pensioner rules where the personal allowance outstrips any rate of working age premiums. It doesn’t matter who is the HB claimant: if either member of the couple is a pensioner and there is no working age DWP means tested benefit in payment (which there isn’t now they no longer qualify for ESA) the claim falls under the HB(SPC) Regs.
If you want regulations to back this up, look at Reg 5 of the working age HB Regs 2006: it says those regs do not apply in a case where the claimant or partner has reached SPC age, unless they are on ESA(ir) etc.
If the working age regs did apply, so that the DP and EDP were available, of course it would be the couple rate: they are a couple. The question should not be “which regs say a couple get couple rate premiums” but “which regs do the council think limit the premium to the single person rate?”
On the face of it this is utterly bizarre behaviour, whoever thought it would be correct to pay single-rate premiums to a couple? But possible explanations include:
- the Council has got confused about the mixed age couple rules which in certain circumstances allow a pensioner to be treated as if they were working age in order to avoid a situation where they cannot get either HB or UC. But those rules have nothing to do with this case at all; or
- one of them has a carer, which means they would only get the single rate of SDP and the Council has mistakenly extended this to all premiums
However, none of that speculation matters because what you have here is a couple to whom the HB pensioner rules apply, which means they get a pensioner personal allowance and the only premiums they can have alongside that would be SDP and/or Carer Premium if they meet the conditions for either/both.
Sorry, just to be absolutely clear: forget about mixed age couples, UC and pension credit under the No 31 Order. It’s irrelevant here, because they are in specified accommodation they get HB in the regular old-fashioned way.
OK, one final thing - perhaps you can direct them to the regs, I think it will help. Articles 7 and 8 of the WRA 2012 No 31 Order (SI 2019/37) provide respectively that for HB purposes in certain circumstances:
- a pensioner is to be treated as working age, and
- a member of a couple is to be treated as single
But if you look at paragraph (1) of each of those Articles it only applies where the claimant is otherwise excluded from entitlement to HB as part of a mixed age couple. In specified accommodation, that is not the case because:
- Article 6(4) says an existing award of HB for specified accommodation does not terminate in circumstances where it normally does terminate for mixed age couples; and
- Article 7 of the No 23 Order allows a new HB claim to be made.
That means Articles 7 and 8 of the No 31 Order are not engaged for the purposes of the HB claim and it is dealt with as a normal pensioner assessment because (i) a member of the couple has reached SPC age and (ii) there is no working age DWP benefit in payment.
HI HB Anorak,
Thanks for the reply. When I checked for the specific wording of the regulation there is mention of IS & IB(JSA) but nothing about IR(ESA). Is it just taken that this applies to those claimants as well. I am just pre-empting a response from the HB department
Refers to ESA here: https://www.legislation.gov.uk/uksi/2019/37/article/8. That is the thing that says the older partner is treated as working age for the purpose of claiming Is, JSA, ESA or HB, but not in a case like yours
Hi HB Anorak
Thanks for your reply. Having read the regulations my understanding is Article 7(3) of Order 23 prevents them from claiming UC HC a they are in temporary accommodation and we have got HB to accept that. Article 8(2)(a) of Order 31 as I am reading it says that although for IS, ESA, etc the older person will be treated as reaching the upper age limit therefore attracting the pension premiums, article 8(2)(b) states that they are treated as not having attained the upper age limit so HB regulations 2006 apply so therefore premiums etc should apply as normal.
8.—(1) This article applies to a member of a mixed-age couple who, further to articles 3 to 7, is excluded from entitlement to state pension credit or housing benefit, and is also prevented from claiming universal credit by virtue of—
(a)regulation 4 of the Universal Credit (Transitional Provisions) Regulations 2014 (claims for universal credit may not be made in an area or category of case);
(b)regulation 4A of those Regulations (restriction on claims for universal credit by persons entitled to a severe disability premium); or
(c)article 4(11) of the Welfare Reform Act 2012 (Commencement No. 32 and Savings and Transitional Provisions) Order 2019 (no claims for universal credit by frontier workers).
(2) Where this article applies, the member of the mixed-age couple who has attained the qualifying age for state pension credit is, for the purposes of an award of benefit referred to in the following sub-paragraphs to that member, to be treated as—
(a)meeting the basic condition of entitlement (upper age limit) for—
(i)income support, in section 124(1)(aa) of the 1992 Act;
(ii)a jobseeker’s allowance, in section 1(2)(h) of the 1995 Act; or
(iii)an employment and support allowance, in section 1(3)(c) of the 2007 Act; and
(b)not having attained that age for housing benefit, for the purposes of regulation 5 of the Housing Benefit Regulations 2006 and regulation 5 of the Housing Benefit SPC Regulations, so that the Housing Benefit Regulations 2006 apply to the assessment of the award.
I got a response from HB who also believe that this is the case.
MAC are so complicated its unreal
As Peter (HB Anorak) explained in post #2 and #3 above, Art 8 of the No 31 Commencement Order does not apply to your case.
Art 8 only applies to cases where:
1) HB could not otherwise be claimed due to the changes made by that Commencement Order, and
2) UC cannot be claimed due to the regs mentioned in Art 8(1)(a)-(c).
Your clients fail this on both counts: they CAN claim HB, and UC can also be claimed.
HB have accepted that its their claim but what I do not understand is whether the working age HB rules apply to them or the pensionable age HB rules as they are MAC.
As explained above, Art. 8 of the No. 31 Commencement Order has no relevance. They will therefore claim HB in precisely the same way they would have claimed it prior to the UC rollout.
MACs not entitled to an income-related benefit have always claimed pension-age HB (see Reg. 5 of the working age HB Regs, as quoted by Peter in post #1 above).
So my reading of this coming at it again this morning and how I will respond to HB is:
Under Order 31 article 6(4) their HB claim should not have been terminated as they are in supported accommodation. I know we ended up making a new claim for HB with the claim in the working age person name but that is allowed under Order 23 article 7(3) which allowed them to apply for HB for specified accommodation.
Therefore, as far as I can see we need to fall back on the HB Regulations.
Regulation 5 Working Age Regulations 2006 states – 5(1) these regs apply to a person (b) has attained SP age if he or partner is on IS, IB(JSA).
More specifically and the regulation I am looking at relying on is
Regulation 5 Working Age HB Regulations 2006 – 5(3) unless (1) applies working age regulations do not apply if they have reached state pension age.
Have I finally got the right end of the stick with regards to this
Yes, exactly that.