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IRESA or UC?
I have a client for whom we have LPA. Although referred to us as a couple a few years ago, his wife refused our assistance and would not divulge any of her information regarding benefits, capital etc. (Both have learning difficulties and mental health problems).
She recently agreed to our intervention and here’s the problem.:
She receives CESA and works 4 hours a week (permitted work I guess, though I have no proof due to her throwing her paperwork away) and he claims IRESA. (2 x SDPs, on enhanced rates of PIP, DL & mob).
Their capital is over £16k;, so should not be receiving IRESA.
I have a HB review form to complete, but no point in doing so.
Obviously I must inform DWP of the capital. What I’m wondering is… when ESA investigate and work out the overpayment, do they actually close the case or is there any chance that they suspend it? Paying off the debts to ESA & HB would bring the capital down below £16k again and they could continue on IRESA. Obviously, if they have to apply for UC with no transitional protection, they stand to lose lots of money over the 20 years they have left before retirement age and they are a genuinely needy couple.
It is likely that they will suspend it right away pending investigation and then make a decision on the effect of the capital on entitlement.
Whether it is a terminal event for the ESA & HB entitlement will depend on the situation when the entitlement decision is actually made.
If, at that point, the claimant has in excess of £16k in capital, then there would be no ESA or HB entitlement. The award would end. ESA could not be reclaimed so UC would be the option in the event their capital subsequently reduced. HB could not be reclaimed unless it is temporary or supported housing.
If their capital were below £16k at that point (and subject to any issues regarding deprivation), then they would continue to have an ESA & HB entitlement. The period for which they were not entitled could be interposed as a ‘closed period supersession’ without impacting their ongoing entitlement.
Is the contributory ESA old style? If so that would mean if capital goes below the limit, income related ESA to top it up would not be a new claim and could allow sdps to be back in payment before claiming UC and therefore get the protection?
It is likely that they will suspend it right away pending investigation and then make a decision on the effect of the capital on entitlement.
Whether it is a terminal event for the ESA & HB entitlement will depend on the situation when the entitlement decision is actually made.
If, at that point, the claimant has in excess of £16k in capital, then there would be no ESA or HB entitlement. The award would end.
Thank you, but I’m still not clear on one thing. If at the point they make the decision there is still £16k+, would the future repayment of the debt be taken into account from their income so they can continue on IRESA? I can’t deprive them of assets, but I can’t pay the debt until the investigation is made and it’s calculatied.
Which course of action do you recommend I take to try to safeguard their SDPs for TP in UC?
Assets and debts aren’t offset against each when assessing capital.
As Vonny says, it seems important to know if the c-ESA is old-style or not. If it is, this seems tricky, I may be missing something:
- tell ESA about the capital
- receive an ESA overpayment decision, and ir-element stops while c-ESA continues
- somehow(?) get HB to suspend making a similar decision
- pay the ESA o/p to reduce capital below £16K (assuming the figures add up)
- tell HB you now have a closed period in which capital exceeded £16K
- receive an HB overpayment decision, but ongoing HB does not terminate
- get income-related ESA with SDPs to top up the c-ESA
If HB do make a decision while excess capital is held, I guess as Vonny says, you can at least try to get the SDPs back in place if it’s old-style c-ESA, then claim UC with TAs.
Can anyone give me the Regs to quote on this - re CESA (old style) and IRESA when capital reduces, please?
Is the contributory ESA old style? If so that would mean if capital goes below the limit, income related ESA to top it up would not be a new claim and could allow sdps to be back in payment before claiming UC and therefore get the protection?
Yes it is a good point. I suppose if it is old-style then maybe things can be juggled to re-establish irESA with SDP entitlement just before making the UC claim.
Can anyone give me the Regs to quote on this - re CESA (old style) and IRESA when capital reduces, please?
The point is that old-style ESA is one benefit. If you have an award of old-style ESA, then you can freely move between cESA, irESA or both until your award ends. As the capital award would only result in a loss of entitlement to irESA and the cESA entitlement would carry on, irESA could be re-introduced by supersession in the future rather than requiring a new claim.
There isn’t really a reg I can point you to, but the case establishing old-style ESA as being one benefit and that the sub-elements do not require seperate claims is LH v SSWP (ESA) [2015] AACR 14
Is the contributory ESA old style? If so that would mean if capital goes below the limit, income related ESA to top it up would not be a new claim and could allow sdps to be back in payment before claiming UC and therefore get the protection?
Yes it is a good point. I suppose if it is old-style then maybe things can be juggled to re-establish irESA with SDP entitlement just before making the UC claim.
Can anyone give me the Regs to quote on this - re CESA (old style) and IRESA when capital reduces, please?
The point is that old-style ESA is one benefit. If you have an award of old-style ESA, then you can freely move between cESA, irESA or both until your award ends. As the capital award would only result in a loss of entitlement to irESA and the cESA entitlement would carry on, irESA could be re-introduced by supersession in the future rather than requiring a new claim.
There isn’t really a reg I can point you to, but the case establishing old-style ESA as being one benefit and that the sub-elements do not require seperate claims is LH v SSWP (ESA) [2015] AACR 14
I’m afraid I still have a query about this. In readnig the decision of LH v SSWP (ESA) [2015] AACR 14 I it is the wife who has the CESA and her wife who claims IRESA, whereas that decision is for a single person. Does that mean that if Mr & Mrs has over £16k when the investigation is carried out and the decision is made, he will remain on CESA only until the joint capital drops AND then either Mr or Mrs can claim IRESA again instead of UC?
(Another of our clients lost his IRESA so had to claim UC for housing costs when his capital decreased/ That appears to have been the wrong decision by ESA?)
So should this be my plan…
1) inform DWP of the capital
2) Inform HB of the capital
3) wait for the investigations and decisions
4) Hopefully HB decision comes first and I repay the overpayment.
5) If this is enough to bring the capital down below £16k at the time that ESA make their decision, we repay debt ro ESA and continue on IRESA, quoting LH v SSWP (ESA) [2015] AACR 14
Sorry to be a pain… just want to be sure before embarking on something time-consuming if it doesn’t stand a chance.
I’m afraid I still have a query about this. In readnig the decision of LH v SSWP (ESA) [2015] AACR 14 I it is the wife who has the CESA and her wife who claims IRESA, whereas that decision is for a single person. Does that mean that if Mr & Mrs has over £16k when the investigation is carried out and the decision is made, he will remain on CESA only until the joint capital drops AND then either Mr or Mrs can claim IRESA again instead of UC?
The position from your original post is that Mrs receives cESA only and Mr receives irESA only.
The capital will result in Mr’s irESA entitlement - and therefore his whole ESA award - ending forever.
However, Mrs’ cESA will not be impacted by the capital and will continue.
Assuming that Mrs is receiving old-style ESA, it would be possible for her then to request supersession to include irESA once the capital defrays.
If it is in fact the case that Mrs receives cESA and Mr receives cESA and irESA, then both ESA awards would continue (as cESA only) and either one of the couple could request that irESA was included in their award once the capital defrayed.
It is worth asking your clients when they first claimed ESA, if it was pre your area becoming full service UC then (provided they met the contribution conditions) it should be old-style
(Another of our clients lost his IRESA so had to claim UC for housing costs when his capital decreased/ That appears to have been the wrong decision by ESA?)
If the client lost I-ESA but remained on C-ESA they could, when capital dropped have asked for I-ESA to be reinstated but taht would not have enabled them to reclaim HB so having to claim UC for housing costs would be correct.
How much over 16k are they? Isn’t there anything they need, were considering buying anyway that they may reasonably purchase. To bring it under 16k before the remainder is reported to esa ?
Its almost impossible for HB to make a decision before ESA make one
ESA IR is a passported benefit, and for HB purposes, all income and capital is disregarded - so you tell them customer has £16k +. all they can do is suspend payments and advise DWP and ask DWP if it affects ESA IR claim.
ESA IR ending doesnt necessariuly ent HB award
Its perfectly possible that HB will suspended , awaiting DWP decision.
lets day SWP say - ESAA IR has been retrospectively ended from Jan 2022 and there is a 14 month op of ESA IR
HB should keep claim suspended and ask for income /capital details since Jan 2022 to date
It may wel be that the customers have 16k+ for most of that period - but if they pay back the DWP overpayment and this beings savings below £16k, then potentally you’ll have a closed period supersession for the HB award.
Obviously there will be an HB overpayment too, which will further reduce any capital, but it may be possible to keep the HB claim alive, albeit it will depend on the amounts of ESA IR o/p
If paying back the ESA IR overpayment doesnt reduce to £16k, then its a much harder job, because the HB overpayment wont be calculated until the new capital/income details provided