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Mixed age couple getting HC. PC an option?

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JAS1
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Hello,

Having a mental block on the rules here.

Wife a few years off SP age. Husband in his mid 70s.

Currently no means tested benefits being claimed.

They get HB and have done for quite a long time (they aren’t sure when).

Can they claim PC due to having a HB claim since beofre 15/5/19?

Thanks

Daphne
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Whose name is the claim in - I think the key thing is whether it’s pension age HB or working age HB - if it’s in the husband’s name then it’s pension age HB and they’re protected and should be able to claim PC provided claim is continuous since before 15/5/19

HB Anorak
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Small technical point, but makes no practical difference to Daphne’s reply.  If the working age partner is the HB claimant, it’s still a pension age HB claim but it doesn’t allow the older partner to claim SPC because the transitional protection for SPC requires that the SPC claimant personally has been on pension age HB since May 2019.

Daphne
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Ooh thanks HB Anorak - I must remember that point :)

Paul_Treloar_AgeUK
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HB Anorak - 14 July 2021 03:28 PM

Small technical point, but makes no practical difference to Daphne’s reply.  If the working age partner is the HB claimant, it’s still a pension age HB claim but it doesn’t allow the older partner to claim SPC because the transitional protection for SPC requires that the SPC claimant personally has been on pension age HB since May 2019.

I recall this has come up before (cos I think I asked about it).

I’m not sure that’s correct in context of this query if you’re sure the HB award is a pension-age award.

Savings
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—

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

Hypothetically speaking in this case, if the younger partner is the HB claimant, then they are a member of a mixed-age couple (by definition) and on the appointed day, they were entitled to pension-age HB (which we know from Article 2 is what any reference to HB must be about, not the working-age version). So the savings could apply, and therefore the amendments to the 2002 Act are treated as if they hadn’t come into effect and therefore the other partner could claim PC. There’s nothing that I can see that says this has to be the same person in both instances.

I think the problem is actually in the HB pension-age regs themselves and that is why I think if the younger partner is the HB claimant, then the savings provisions might not apply here.

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 [F1on universal credit,] on income support [F2, [F3on] an income-based jobseeker’s allowance or on an income-related employment and support allowance

Reg.5(1) states the pension age HB regs apply where “the person” has attained the qualifying age for SPC. In this case, the younger partner hasn’t attained that age, so they might not apply.

However, that’s where we hit the killer because the working age HB regs state:

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 [F1on universal credit,] on income support[F2, on an income-based jobseeker’s allowance or on an income-related employment and support allowance].
F3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Except as provided in [F4paragraph (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.

Reg5(3) states these regs don’t apply where the the person has a partner who has reached the qualifying age for SPC.

Obviously, I prefer the approach whereby the younger partner claiming HB with an over SPA partner and no legacy benefit in payment is in fact claiming pension age HB and therefore can take advantage of the savings provisions but it’s a bit of mess by the look of it.

HB Anorak
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The problem with the savings provision is that only pensioners can claim SPC so the person who must satisfy Article 4 is the older partner.  But s/he cannot satisfy Article 4 by relying on HB if s/he isn’t the HB claimant.  If we strip out the extraneous words article 4 applies to “a member of a mixed-age couple who ... is entitled to ... housing benefit”.

As for the younger partner claiming pension age HB (which means they benefit from a more generous means test and avoid nasty welfare reform features that are absent from the pensioner regs), I am convinced it is a pensioner claim when they don’t get working age DWP benefit because:

- if that were not the case, they wouldn’t be covered by any HB Regs at all, which cannot be right, and
- the old CTB Regulations were more precise about this and we must assume that HB and CTB were intended to work the same way as each other

Paul_Treloar_AgeUK
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If you’re convinced that a younger partner can be claiming pension age HB where no legacy benefits in payment, then I think it’s strongly arguable that Article 4 should apply and the older partner can make a PC claim at a later point.

Savings
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—

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

Strip out the words as you state and we get ”...the 2002 Act shall have effect as though sec.4(1A)...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…

Obviously the older partner is the only person who can satisfy (a) or (c) but the younger partner can clearly fall within (b) - they are “a person” who is “a member” of a MAC and all that happens is the changes to the Act are treated as not made - it expressly doesn’t imply that person can in fact claim PC because of course they can’t However, because the Act remain unamended, the older partner can now make the PC claim.

If you wanted to restrict in the way you’re reading it, then why not use, for example, ”..in relation to the older member of a mixed-age couple who on the day… - absolutely no ambiguity in that case.

HB Anorak
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I see what you are saying Paul:  it does have the effect of preserving the 2002 Act in its previous form for the younger partner in a case where the younger partner is claiming pension age HB.  But that doesn’t achieve anything in practice because s/he cannot claim SPC anyway.  The two partners are individuals for the purpose of claiming SPC or HB, I cannot see how preserving the unamended SPC Act for partner A enables partner B to claim SPC.  The transitional protection has to “belong” to the person who is going to claim SPC and that is not the case if the younger partner is the HB claimant.

The key is who or what is the subject of the word “is” in the phrase “member of a mixed age couple who ... is entitled ...”.  I’m reading it as “member”, you would need it to be “couple” for your interpretation to work.  I cannot read it that way because of the following words “as part of that couple”, which can only refer to one individual person.

Paul_Treloar_AgeUK
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I see what you saying Peter but whilst you ca n only have one member of the couple claiming either HB or PC, they do so on a collective basis. The younger partner’s HB award is made as part of a MAC and includes the older partner, therefore if Art.4 disapplies the 2002 Act amendment, then within their claim universe, that applies equally to the older partner as to the younger partner. How could it not?

I think this view is also supported by the wording used in the explanatory memorandum to the CO -

Under article 4(2), the savings continue to apply until such time as there is neither entitlement as part of the couple to state pension credit, nor housing benefit for those of state pension credit qualifying age. Provided that there is continuity of entitlement to either benefit, the savings continue. So entitlement to state pension credit, provided as part of the same couple, may arise (or arise again) after the appointed day, so long as there is entitlement on the part of the couple to housing benefit for those of state pension credit qualifying age and there was such entitlement, or entitlement to state pension credit, on the day before the appointed day

so long as there is entitlement on the part of the couple to housing benefit for those of state pension credit qualifying age

Charles
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Paul_Treloar_AgeUK - 15 July 2021 11:30 AM

I think this view is also supported by the wording used in the explanatory memorandum to the CO -

Under article 4(2), the savings continue to apply until such time as there is neither entitlement as part of the couple to state pension credit, nor housing benefit for those of state pension credit qualifying age. Provided that there is continuity of entitlement to either benefit, the savings continue. So entitlement to state pension credit, provided as part of the same couple, may arise (or arise again) after the appointed day, so long as there is entitlement on the part of the couple to housing benefit for those of state pension credit qualifying age and there was such entitlement, or entitlement to state pension credit, on the day before the appointed day

so long as there is entitlement on the part of the couple to housing benefit for those of state pension credit qualifying age

That is referring to Art 4(2), and Art 4(2) is specifically referring to only one member of the couple. It states: “The savings [...] shall cease to have effect in relation to the member of the mixed-age couple referred to on any day after the appointed day when that person is not entitled to either state pension credit or housing benefit as part of the same mixed-age couple.” (my emphasis).

The Explanatory Memorandum must be working within the above limitation and is just explaining that the HB/SPC entitlement must be as part of the mixed-age couple.

[ Edited: 15 Jul 2021 at 12:29 pm by Charles ]
Paul_Treloar_AgeUK
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Well of course Art.4(2) is drafted according to the person entitled to the relevant benefit, it wouldn’t make any sense if it wasn’t. We’ve already established that only one person in a MAC can be entitled to either benefit, that’s not the issue. So if they are no longer in a MAC, the savings stop and if they are only entitled to HB or PC and that benefit stops, then the savings stop (unlike whereby one or the other continues).

That still doesn’t get around the fact that pension-age HB is in payment on the relevant date and that HB award is being paid as part of a MAC and I would argue that means the savings apply and a PC claim can be made by the other partner.

The A3 Guidance uses the same language - Savings provisions
5. The Commencement Order includes savings provisions which protect existing mixed age couples as though the changes had not come into force. This means that where a mixed age couple were entitled to the following on 14 May 2019, they will continue to be entitled on or after 15 May 2019:

pension age Housing Benefit
Pension Credit or
both

As does the A9 Guidance - Existing HB claimants: over pension age on 15 May 2019
6. Mixed age couples who are receiving HB assessed under SI 2006/214 on 14 May 2019 remain entitled to HB unless there is a relevant change in circumstances which ends their HB claim. If they are also receiving Pension Credit which remains in payment then they can make a new claim for HB at a later date.

If it was as precise as suggested, why doesn’t either the legislation or the guidance make that clear? It wouldn’t be particularly difficult as I suggested further up this thread. My suggestion as to why? Because I think you’re wrong and it applies equally to both parties in a HB only scenario.

Also, your version would mean a MAC who on 14 May 2019 were receiving PC paid to the older partner and pension age HB paid to the younger partner, and who lose entitlement to PC from 15 May 2019 onwards would also, at that point lose their HB entitlement because the savings could no longer apply to the HB award made to the younger partner. That would be absurd.

HB Anorak
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Also, your version would mean a MAC who on 14 May 2019 were receiving PC paid to the older partner and pension age HB paid to the younger partner, and who lose entitlement to PC from 15 May 2019 onwards would also, at that point lose their HB entitlement because the savings could no longer apply to the HB award made to the younger partner. That would be absurd.

The Article 4 savings only protect Pension credit and, via the no 23 Order, new claims for HB.  As for existing HB awards, they aren’t affected by Article 4 and will only terminate if something in Article 6 happens.  The older partner ceasing to be entitled to SPC would not terminate the younger partner’s HB under Article 6.  But it would irrevocably end transitional protection for the older partner who would no longer be able to reclaim SPC.

Paul_Treloar_AgeUK
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HB Anorak - 15 July 2021 02:31 PM

The Article 4 savings only protect Pension credit and, via the no 23 Order, new claims for HB.  As for existing HB awards, they aren’t affected by Article 4 and will only terminate if something in Article 6 happens.  The older partner ceasing to be entitled to SPC would not terminate the younger partner’s HB under Article 6.  But it would irrevocably end transitional protection for the older partner who would no longer be able to reclaim SPC.

Yes of course, you’re correct on that.

Charles
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Paul_Treloar_AgeUK - 15 July 2021 01:44 PM

Well of course Art.4(2) is drafted according to the person entitled to the relevant benefit, it wouldn’t make any sense if it wasn’t. We’ve already established that only one person in a MAC can be entitled to either benefit, that’s not the issue. So if they are no longer in a MAC, the savings stop and if they are only entitled to HB or PC and that benefit stops, then the savings stop (unlike whereby one or the other continues).

That still doesn’t get around the fact that pension-age HB is in payment on the relevant date and that HB award is being paid as part of a MAC and I would argue that means the savings apply and a PC claim can be made by the other partner.

The A3 Guidance uses the same language - Savings provisions
5. The Commencement Order includes savings provisions which protect existing mixed age couples as though the changes had not come into force. This means that where a mixed age couple were entitled to the following on 14 May 2019, they will continue to be entitled on or after 15 May 2019:

pension age Housing Benefit
Pension Credit or
both

As does the A9 Guidance - Existing HB claimants: over pension age on 15 May 2019
6. Mixed age couples who are receiving HB assessed under SI 2006/214 on 14 May 2019 remain entitled to HB unless there is a relevant change in circumstances which ends their HB claim. If they are also receiving Pension Credit which remains in payment then they can make a new claim for HB at a later date.

If it was as precise as suggested, why doesn’t either the legislation or the guidance make that clear? It wouldn’t be particularly difficult as I suggested further up this thread. My suggestion as to why? Because I think you’re wrong and it applies equally to both parties in a HB only scenario.

Also, your version would mean a MAC who on 14 May 2019 were receiving PC paid to the older partner and pension age HB paid to the younger partner, and who lose entitlement to PC from 15 May 2019 onwards would also, at that point lose their HB entitlement because the savings could no longer apply to the HB award made to the younger partner. That would be absurd.

I agree that the guidance isn’t clear, but I think the legislation is clear.

Art 4(1) is clear that it only applies in relation to the person entitled (albeit as part of a couple), not to both members of the couple. Art 4(2) backs up that reading too, by also only referring to that particular member of the mixed-age couple.

That being said, as the guidance is certainly not clear, perhaps it’s worthwhile making a claim - perhaps DWP will allow it.

mand74
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Hi

I have a similar enquiry and not sure if its too late in the day but have I understood this correctly?

I have a couple, one who turned State pension age on 06/05/2014 but the other is under state pension age currently.  I understand they have been in the couple for some time and have been claiming HB for a long time as a couple too. 

They have just come to us for a benefit calculation and I can identify PC.  The non SPA cl is getting CBESA. The pension age cl is getting a small state pension and PIP. but confirmed they are getting full HB on a 2 bed HA property and full CTR.

To me it sounds like they are on pension ag HB and should have been getting PC but I can certainly identify that for them now.  Have I misunderstood the rules or should they still be able to make a claim for PC?

Thanks and apologies for jumping on this thread but thought you may be able to clarify for me?

Amanda

Paul_Treloar_AgeUK
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mand74 - 21 September 2021 05:28 PM

Hi

I have a similar enquiry and not sure if its too late in the day but have I understood this correctly?

I have a couple, one who turned State pension age on 06/05/2014 but the other is under state pension age currently.  I understand they have been in the couple for some time and have been claiming HB for a long time as a couple too. 

They have just come to us for a benefit calculation and I can identify PC.  The non SPA cl is getting CBESA. The pension age cl is getting a small state pension and PIP. but confirmed they are getting full HB on a 2 bed HA property and full CTR.

To me it sounds like they are on pension ag HB and should have been getting PC but I can certainly identify that for them now.  Have I misunderstood the rules or should they still be able to make a claim for PC?

Thanks and apologies for jumping on this thread but thought you may be able to clarify for me?

Amanda

I think from what you have described, your clients should be able to claim PC now but be prepared to have to argue the case if they make a telephone claim as we’re hearing a lot of reports about gatekeeping again and people being refused the ability to even make the claim, let alone get a decision.