Underlying entitlement to carers allowance

Was wondering if anyone could offer any comments on the following.

We have had a client today who is part of a couple and both he and his wife are in receipt of DLA which has allowed them to both claim SDP’s. He was a previous claimant of IB and IS, has migrated over to ESA, been placed into WRAG and therefore his claim has changed from CBESA and IRESA to complete IRESA after 365 days.

Whilst he was claiming IB he submitted a claim for carers allowance and was awarded the underlying entitlement to carers premium and this award has stayed with him throughout his migration.

A claim has been put in for carers allowance for him now as he is no longer in receipt of an overlapping benefit and it has been awarded (he wasnt advised to do this by us…) he is now worse off as they have lost one of their SDP’s.

Our concern is how this will effect other claimants. If a client loses entitlement to an overlapping benefit that has previously prevented carers allowance from being paid, what is the risk of carers allowance now becoming payable and therefore causing people to lose SDP’s. In the age old situation of a couple both claiming double SDP’s and CP’s it would reduce their income by over £100 pw.

Is their any protection for people that have migrated over from IB to IRESA to prevent them losing out?? Or do we never see CA Unit realising this and continuing to pay underlying entitlement to CP, unless something triggers them to pay CA??

Any thoughts on this could be greatly appreciated.

I have considered this as well as the change is a change in a material fact of some other persons benefit entitlement.

most clients don’t understand the full overlapping benefit, sdp issue so I cant see how they are going to figure out that the end of the 365 days of their carers claim should lead to a change in their entitlement.

My understanding is that the person who has been migrated would contact CA unit and close their CA claim. They would retain their SDP but lose the Carer Premium. The other partner would carry on as previously and continue to get SDP and Carer Premium (as the CA would still overlap). So they would miss out on the Carer Premium of 34.20. If they don’t stop the CA unit they would keep their Carer Premium and SDP but the other person would lose their SDP of 61.10.

The Disability Rights Handbook suggests that ending your CA claim could constitute intentional deprivation, although I have to say that I’ve had a few cases where people have closed their CA claims in order for another person to get an SDP and this problem has not arisen. One explanation may be that at least some of these situations involve people who aren’t couples - so the claimant who is becoming better off is not depriving themselves of any income as it is somebody else whose CA is stopping.

The CA is payable as soon as the CESA ends - Adams (R(G)1/03).

Each case will need to be considered on its individual facts as there could be a number of better off scenarios to consider.  The following points may be relevant:

(i) If the claimant whose CESA is time-limited continues to be the IRESA claimant (for the couple) then relinquishing the claimant’s CA might be regarded by DWP as deprivation.

(ii) The CA in Adams above, whose judgment was admittedly pre the HL judgment in Hinchy, puts the onus on the CA Unit to realise that IB [CESA] has stopped and to start paying CA.  The claimant’s failure to timeously notify the CA Unit does not prevent his/her CA being immediately payable from the date that the IB/CESA ended.  Mr Adams did not notify the CA Unit until after a tribunal had dismissed his IB appeal (which was about a year later).  But he was still entitled to arrears of CA all the way back to date his IB had originally ended.  If the claimant’s CA has always been overlapped by IB and, post migration, by CESA, with the result that the time-limiting of the latter is the first occasion that CA falls to be paid then it would appear that para 6(6) of Sch4 to the ESA Regs would apply which would, in DWRS’ case, prevent the CA claimant’s partner losing his/her SDP for the period that the claimant is paid CA arrears.  The upshot is that if a client whose CA had always been overlapped didn’t realise that he had to notify the CA Unit until some time, years even, after his CESA was time-limited then he seems entitled to CA arrears for the whole period of that ignorance without it affecting his partner’s SDP for that period.  A SDP was not in issue in Adams and, whilst he had a legitimate reason for not timeously notifying CA (the Unit had sent him an enquiry form which he had not returned, choosing instead to wait for the outcome of his IB tribunal), his motives did not, ultimately, affect the CA’s decision.  Nor does it seem that the HL’s decision in Hinchy (putting the onus on a claimant to notify DWP) makes any difference, the Court in Adams acknowledging at one point that the situation may be different with overpayments, whereas it was concerned with underpayments (of CA in Adams’ case). 

(iii) If the CESA claimant is already also receiving IRESA (for the couple) at the point his/her CESA is time limited then it seems IRESA is automatically adjusted (perhaps without the need even for a form ESA3 to be submitted).  S/He remains in the same period of limited capability for work (pLCW) as a result.  If that were not the case, eg because s/he decided to claim IS as a carer or to allow their partner (who still receives a contributory benefit - IB or CESA) to become the IRESA claimant for the couple, s/he would no longer be in a pLCW.  After 12 weeks and one day (85 days) s/he would almost certainly then re-qualify for CESA if it was re-claimed, relying on Reg 8 ESA Regs to relax the requirement that one of the last two tax years be used to satisfy the 1st contib condition, instead allowing any previous tax year in his/her working life to count (and the fact s/he was receiving IB before migration makes it very likely that there will be at least one tax year out there which does satisfy the albeit slightly stricter 1st contrib condition for CESA), and relying on his/her receipt of IB/CESA in the two most recent tax years to satisfy the 2nd contrib condition for CESA.  The new CESA would once again overlap their CA restoring their partner’s SDP.  If s/he was put in WRAG on the new CESA claim, it would again be time-limited after a year but s/he could again wait 85 days before re-applying.  This process could go on annually potentially until they reach retirement but care would be needed during the 85 days to make sure that they retain a source of credits, whether through continued receipt of CA or, failing which, carers or LCW credits.

Just one additional point:- Obviously there is nothing to stop the C.A. claimant rescinding their claim if they stop caring for the required 35 hours per week. This has never created any problems when clients of mine have done it in such circumstances.