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Healthy Start Scheme and IR-ESA

JSmith
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Hi there,

I cannot find the relevant legislation that includes IR-ESA as a qualifying benefit for the Healthy Start Scheme. There have been various amendments over the years (https://www.legislation.gov.uk/primary+secondary?title=healthy%20start%20scheme&page=2) but none of them mention IR-ESA. I’m pretty confident IR-ESA is a qualifying benefit (and it’s listed as such on gov.uk - https://www.gov.uk/healthy-start/eligibility), but without being able to find the relevant legislation I’m beginning to question myself, particularly as I note IB is not included in the original 2005 regs (https://www.legislation.gov.uk/uksi/2005/3262/contents/made).

Is it simply a case that the relevant amendment to include IR-ESA when it was introduced in 2008 is missing from the list of amendments, or am I missing something, and IR-ESA is not actually a qualifying benefit for the Healthy Start Scheme? I can’t imagine that to be the case or I’m pretty sure I would have come across it before and there would have been legal challenges over the years.

Can anybody shed any light?

Peter Donohue
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sorry no time to look up legislation, but it is absolutely a qualifying benefit (if 10 weeks pregnant) according to NHS’s own web pages…and according to Gov.uk:-

“You will qualify for the Healthy Start scheme if either:

you’re at least 10 weeks pregnant
you have at least 1 child under 4 years old
In addition, you must be receiving any of the following:

Child Tax Credit (but only if your family’s annual income is £16,190 or less)
income-related Employment and Support Allowance
Income Support
income-based Jobseeker’s Allowance
Pension Credit
Universal Credit (but only if your family earns £408 or less per month from employment)
You’ll also be eligible for the Healthy Start scheme if you’re pregnant and under 18, even if you do not receive any benefits.”

JSmith
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Thanks Peter,

After looking into it a bit more it seems IR-ESA may only be a qualifying benefit during pregnancy, but I can’t find where the law says this. Can anybody else help shed any light please?

The NHS website lists IR-ESA separately from the other means tested benefits and specifically states you’ll also be eligible if “you claim income-related Employment and Support Allowance (ESA) and are over 10 weeks pregnant”.

The latest CPAG Welfare Rights handbook also states “IR-ESA is a qualifying benefit during pregnancy only” but doesn’t stipulate this for the other benefits.

Turn2Us doesn’t list IR-ESA as a qualifying benefit at all!

I called up the Healthy Start helpline who said IR-ESA is only a qualifying benefit during pregnancy. If you’re responsible for a child under 4 and you’re only claiming IR-ESA, you’re not eligible for the vouchers. They said you must be claiming a benefit that includes an award for the child. Now I understand that pregnant legacy claimants on IR-ESA would have claimed CTC when the baby was born, but if they’re not already getting any TC they’ll have to claim UC instead. But some people are so against UC they refuse to switch from IR-ESA (even to their financial detriment).

What I’m struggling to find is any legislation that 1) lists IR-ESA as a qualifying benefit, 2) stipulates that it is only a qualifying benefit during pregnancy, and 3) stipulates that an award of a qualifying benefit must include a child element (other than the PC amendment I’ve mentioned below). IR-ESA is simply not mentioned in any of the amended guidance since 2005 - but if it’s only a qualifying benefit during pregnancy, it must stipulate this somewhere!

Maybe I’m just not quite understanding the legislation? If I’m interpreting it wrong can someone please help me interpret it correctly? (reading legalese isn’t my strong suit)

Reg 3(3) HSS&WF;(A) Regs 2005 states “a child who is under the age of five years, and who is a member of the family of a person who is entitled to income support, or an income-based jobseeker’s allowance, or child tax credit, where the relevant income of the person or persons to whom the award of child tax credit is made under section 14 of the Tax Credits Act 2002 is determined at the time of the award not to exceed £13,910, and the person is not entitled to working tax credit.”

I don’t read that as meaning the benefit has to include an element for the child, just that they are a member of the family of a person entitled to one of the listed benefits. Am I reading it wrong?

a 2008 amendment changed the wording of Reg 3 (3)(e) slightly (4) For paragraph (3)(e) substitute—

“(e)a child who—
(i)is under the age of four years; and
(ii)is a member of the family of a person who—
(aa)is entitled to income support, or an income-based jobseeker’s allowance, or child tax credit, where the relevant income of the person or persons to whom the award of child tax credit is made under section 14 of the Tax Credit Act 2002 is determined at the time of the award not to exceed £15,575;and
(bb)except as provided for under paragraph (7) is not entitled to working tax credit.”.

But again, I don’t read this as meaning the benefit must include a child element. This also came into force in April 2008 before ESA was introduced, so I can see why it doesn’t include it, but I can’t find any other amendments after Oct 2008 to include IR-ESA.

There’s amendment regs that stipulate if they’re on PC it must include a child element (https://www.legislation.gov.uk/uksi/2019/909/regulation/3/made), however, the amendments that include UC don’t stipulate that the UC must include a child element (maybe due to the 2 child limit?) (https://www.legislation.gov.uk/uksi/2016/985/regulation/2/made).

I might be being a little pedantic, but I need to know if there is a valid argument to appeal a decision if someone with parental responsibility is refused Healthy Start Vouchers simply because they have chosen to remain on IR-ESA and have not claimed UC.

Thank you in advance for anyone who tries to help me - I appreciate that it’s a lot of digging into regs which is time consuming!

Gareth Morgan
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JSmith - 19 January 2022 10:01 AM

IR-ESA is simply not mentioned in any of the amended guidance since 2005 - but if it’s only a qualifying benefit during pregnancy, it must stipulate this somewhere!

The explanatory memorandum to the Healthy Start Scheme and Welfare Food (Miscellaneous Amendments) Regulations 2020 (no. 267) says

“7.2 The 2005 Regulations provide entitlement to Healthy Start benefits for pregnant
women, mothers of children under the age of one and children under the age of four,
who are entitled to a “qualifying” income related benefit, or where certain members of
their household are so entitled. The qualifying benefits are:
• Income Support
• Income-based Jobseeker’s Allowance
• Income-related Employment and Support Allowance
• Child Tax Credit (with an annual family income of £16,190 or less)
• Universal Credit (with a family take-home pay of less than £408 per month)
• Pension Credit
They also provide entitlement to Healthy Start benefits for all pregnant women under
the age of 18, regardless of whether they receive any of the qualifying benefits.
Following the birth of their baby, women aged under 18 must meet the benefit criteria
to continue receiving Healthy Start benefits.”

 

Charles
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The relevant amendment is here: https://www.legislation.gov.uk/uksi/2008/1879/regulation/10

As mentioned above, they only included it for pregnancy. Probably because it was felt that once a child was born, the parent would anyway be getting CTC/UC.

I think the person who told you that you have to be receiving a benefit for the child was wrong.

See also here, which looks fairly accurate:

https://www.healthystart.nhs.uk/how-to-apply/

JSmith
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Thanks so much Gareth and Charles!

I’m super in awe that you found the reg Charles!

I still don’t quite know why it stipulates IR-ESA is a qualifying benefit only during pregnancy in the CPAG handbook (I’ve asked them directly and I’m waiting for a response) or why its separated out from the other benefits on the NHS website. I totally get that the rationale might be the assumption that the parent would be getting CTC in addition to IR-ESA or switch to UC, however, if the law doesn’t require that, it’s quite concerning that healthy start seem to be applying this rule.

Charles
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No, the law does apply it only during pregnancy. The amendment is only made to Reg. 3(3)(a), which only applies to pregnancy (and potentially to the 4 months after the due date if the birth hasn’t been reported to them).

JSmith
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Oh right, thanks for pointing that out!

Vaux
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https://www.disabilitynewsservice.com/baby-vouchers-scheme-blackmails-disabled-parents-onto-universal-credit


This is an interesting issue. It does appears from the article that pregnant women who get income-related ESA will only qualify for HSV if they switch to UC when the child is born. The Healthy Start website is apparently incorrect and is being amended.  Under legacy benefits, the claimant would have had the option of qualifying for HSV via tax credits, income support or I-B JSA if ESA ended, but now it would have to be UC.

 

Charles
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I think that article is wrong to suggest it’s been done deliberately to force people over to UC. These rules were in place long before UC was around.

Thinking about it again, I think the reason ESA was treated differently to IS/JSA is because long-time IS/JSA claimants may be receiving support for their children through IS/JSA (rather than CTC). That is not the case for ESA.