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New Style ESA and income (UC regs or ESA regs)

mand74
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Royal Air Force Benevolent Fund

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Hi All,

I am getting all in a mind fog with multiple military pension and benefits enquiries as to whether these pensions should be disregarded and varying DWP decisions.

Probably a daft question but in regards to new style ESA does anyone know if I should be looking over UC regulations or previous ESA regs in regards to what is disregarded as income or not?

Thanks and apologies if this is obvious I am having one of those weeks already.

Ianb
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Macmillan benefits team, Citizens Advice Bristol

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I would think ESA Regulations 2008.

mand74
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Thanks.  Having looked at it a bit more and cleared my head a tiny bit I agree it appears that is the case so can hopefully get this rectified for a client.

Thank you.

HB Anorak
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For new style ESA would it not be Reg 67 of the ESA Regs 2013?  Doesn’t make much difference in practice I suppose.  Reg 67 is supported by definitions which are split between Reg 2 of the same regs and Section 3 of the WRA 2007.  How close that will get you to understanding which RAF pensions are counted and which not I don’t know - you need to be knowledgeable about military pensions, benefits and tax to navigate these rules with any confidence.  I know someone who can claim at least 2 out of 3 - that would be Charles if he’s passing by

Charles
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I don’t know very much about the various military pensions, but Chapter V1 of the ADM seems to provide fairly comprehensive guidance on many types of such pensions.

The starting point is to calculate the total weekly amount of all pensions to which s.3 WRA 2007 applies. If that figure exceeds £85, then half of the excess is deducted from the ESA award.

It appears that:

1. The main Armed Forces Pension Scheme is a ‘public service pension scheme’, and therefore s.3 WRA 2007 does apply to it. This includes pensions payable both to those who retire and those made redundant. It also includes an increase given if the claimant is invalided out of the armed forces.

2. S.3 WRA 2007 does not apply to:
  a. War pensions paid due to disablement and not due to retirement/redundancy. This is the case even if it is paid as an addition to the regular service pension (in which case the addition is simply ignored).
  b. Gallantry awards
  c. Survivors’ pensions
  d. Pension payments in respect of death due to military or war service
  e. Guaranteed income payments under the Armed Forces Compensation Scheme

mand74
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Thank you.  So many military pensions and differing rules under each benefit it is a minefield but this is really helpful and I think I am slowly getting my head around it, maybe.

Thank you

mand74
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In an addition to this, I thought I might just put it out there in case anyone has come across this, I have a client who was receiving a war pension and has been on disability since 1992.

She was on invalidity benefit, then moved to Incapacity, then ESA.  She was getting IS top up and IRESA top up and is now on UC top up. 

She has had multiple issues but wants to challenge the fact that when she was on ESA her war pension was disregarded for CBESA but not for IRESA.  They have literally after several years and challenges accepted that a £10 disregard should have been applied.  She feels as no deduction was in her IS and now UC her pension should be disregarded for IRESA purposes and to challenge this. 

I am doing some research to see if anything is missed but both the IS regs and ESA reference a £10 disregard only and just wondered if anyone had come across anything different. I think on this basis the DWP miscalculated during her IS years.

Thanks in advance if you have come across this and can direct me. 

HB Anorak
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Yes, £10 disregard across all the DWP legacy benefit schemes.  UC disregards war pensions in full, local authorities have discretion to do so in HB (and I have yet to see one who doesn’t), but ESA(ir) was £10 a week only.

mand74
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Great.  I was not going entirely mad.  Thanks

Ianb
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HB Anorak - 24 January 2022 06:59 PM

For new style ESA would it not be Reg 67 of the ESA Regs 2013

You are, of course, correct!