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Two IRESA claimants forming a couple

SamW
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Hi there Rightsnetters

I’ve got two single ESA claimants who have moved in together and formed a couple. They both get PIP and SDPs. One of them gets CA/Carer Premium as a carer for their mother (they expect to continue in this role).

DWP have told them that now they are a couple they must claim UC.

There was a thread earlier this year (https://www.rightsnet.org.uk/forums/viewthread/16648/) suggesting that this was incorrect and that what they can do is end one of the ESA claims and have the remaining claim revised so that it is paid at the couple rate + 2 x SDP and the CP.

Is this still the case?

As an aside, if you had a situation where they were moving into a new property and so would need to claim UC to get the housing costs - would they get transitional protection for both SDPs???

Many thanks :)

Sam

Paul_Treloar_AgeUK
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I can’t see why that isn’t the case Sam but in the case we’ve been advising on, it’s proving difficult to progress this with DWP.

Elliot Kent
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There isn’t any good reason why DWP should find this difficult. The couple are just going to have to end one of their ESA awards and then the remaining award will need to be recalculated to reflect the claimant’s current circumstances. The fact that UC exists doesn’t (shouldn’t) influence the day to day management of legacy benefit awards.

Complications would only arise if you were forming a couple with someone who was already on UC.

Paul_Treloar_AgeUK
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From our adviser:

We have had difficulty with ESA who have not been helpful. I contacted ESA with the client on the 12th Aug, and the advisor advised the client would receive a call from the benefits team and an ESA 3 form would be sent in the post, both of which did not happen. We called ESA again on the 17th Aug, and the advisor explained that our request of a joint claim is possible and that a benefits team advisor would call, which again did not happen. We completed the ESA 3 form and sent this in the post via recorded delivery on 23rd Aug. The advisors said due to the number of benefits claims that they could not guarantee the client would be called back but they had marked this as urgent.

The older member of the couple became pension age on 29th Aug, and ESA has since stopped. The older member of the couple should have received his ESA payment today which did not happen. The older member of the couple called ESA and they have said they have been moved to Universal Credit and will receive a phone call from the Benefits Team to discuss.

Elliot Kent
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Paul_Treloar_AgeUK - 14 September 2021 04:16 PM

From our adviser:

We have had difficulty with ESA who have not been helpful. I contacted ESA with the client on the 12th Aug, and the advisor advised the client would receive a call from the benefits team and an ESA 3 form would be sent in the post, both of which did not happen. We called ESA again on the 17th Aug, and the advisor explained that our request of a joint claim is possible and that a benefits team advisor would call, which again did not happen. We completed the ESA 3 form and sent this in the post via recorded delivery on 23rd Aug. The advisors said due to the number of benefits claims that they could not guarantee the client would be called back but they had marked this as urgent.

The older member of the couple became pension age on 29th Aug, and ESA has since stopped. The older member of the couple should have received his ESA payment today which did not happen. The older member of the couple called ESA and they have said they have been moved to Universal Credit and will receive a phone call from the Benefits Team to discuss.

Quite - no good reason to find it difficult. That doesn’t always stop them finding a way.

Sounds like your case is heading the way of a complaint or JR threat Paul.

SamW
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Thank you both!

In financial terms would the couple be worse off on UC? As they should get transitional protection for their SDPs. Both are pretty close to pension age and so they are not likely to lose out on much on the SDP upratings. Clients are reluctant to claim UC and would rather stay on legacy if possible but I sense that if it is going to be a real battle getting ESA to do what they should be doing they might take the easy route of just claiming UC so long as they are not worse off. Especially if one of their ESA claims has stopped whilst it gets wrangled over.

Ianb
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I think they should have been able to make the younger partner the ESA claimant with the older partner taken into account. When older partner reached pension age the ESA would then have included the pensioner premium. With the younger partner as the ESA claimant they would then keep HB entitlement (if that is relevant).

AlexJ
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An important thing to note in this case is that if the clients do claim UC, because of the way the regs about the transitional SDP element (TSDPE) are drafted, they will only get the higher rate of the TSDPE if they first establish a joint claim for IRESA with a double SDP (referred to as the ‘higher SDP rate’ in the regs) on it. If they went straight from two single claims for ESA to a claim for UC, they would only get £120 TSDPE, as opposed to £405. So I think that pushing for the ESA to be superseded to be paid at the couple rate is important before any claim to UC.

5.  The amount of the transitional SDP element in the first assessment period is—

(a) in the case of a single claimant—
(i) £120, if the LCWRA element is included in the award, or
(ii) £285, if the LCWRA element is not included in the award;
(b) in the case of joint claimants—
(i) £405, if the higher SDP rate was payable,
(ii) £120, if paragraph (i) does not apply and the LCWRA element is included in the award in respect of either of them, or
(iii )£285, if paragraph (i) does not apply and the LCWRA element is not included in the award in respect of either of them.

SamW
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AlexJ - 20 September 2021 11:40 AM

An important thing to note in this case is that if the clients do claim UC, because of the way the regs about the transitional SDP element (TSDPE) are drafted, they will only get the higher rate of the TSDPE if they first establish a joint claim for IRESA with a double SDP (referred to as the ‘higher SDP rate’ in the regs) on it. If they went straight from two single claims for ESA to a claim for UC, they would only get £120 TSDPE, as opposed to £405. So I think that pushing for the ESA to be superseded to be paid at the couple rate is important before any claim to UC.

5.  The amount of the transitional SDP element in the first assessment period is—

(a) in the case of a single claimant—
(i) £120, if the LCWRA element is included in the award, or
(ii) £285, if the LCWRA element is not included in the award;
(b) in the case of joint claimants—
(i) £405, if the higher SDP rate was payable,
(ii) £120, if paragraph (i) does not apply and the LCWRA element is included in the award in respect of either of them, or
(iii )£285, if paragraph (i) does not apply and the LCWRA element is not included in the award in respect of either of them.

Ah thank you Alex that is super helpful. So it definitely makes a big difference. Clients are requesting an ESA3 I will keep an eye on this.