Short Term Benefit Advances

Hello

My client applied and has been refused a short term benefit advance while she waits for a decision on her ESA claim and one of the two reasons given was that she has capital.  My client owns a property that she does not live in however the DWP have already valued the capital and it is low enough that she still qualifies for an award of ESA, although reduced due to tariff income rules. She has no other savings.

I have had a look at the The Social Security (Payments on Account of Benefit)
Regulations 2013 and while I can see Capital limits for budgeting advances under the Universal Credit rules I cannot see any capital restrictions for those claiming a short term advance of ESA.

Under Regulation 7 of SS(PAB) Regs financial need is where there is a serious risk of damage to the health or safety of claimant or their family. So although there aren’t capital rules you are likely to be refused if you do have available capital. But if it is tied up in a property then it isn’t available.

Of course you can’t appeal refusal of a STBA but I would go back and point out that there is no available capital - what was the other reason?

Thanks Daphne.

The other reason was that they are waiting for a decision on HRT so I had expected that to be an issue but was interested in the capital argument they made.

(hopefully HRT will be fairly straightforward as she should have acquired a permanent right to reside having being a worker for more than 5 years).

Right to reside cases are rarely straight forward, due to difficulty gathering the evidence, poor understanding of the law by decision makers (you should hear the legal howlers made by a DM to one of my colleagues recently) and administrative foot dragging, and can, face long delays.  I would follow Daphne’s advice and ask for a review.

DWP guidance (e.g. referenced here or here) explicitly includes includes a “funds test”:

STBAs may be awarded where the Decision Maker is satisfied that the claimant has demonstrated that:
• it is likely that they satisfy the conditions of entitlement for benefit
• they can afford to repay an advance within 12 weeks (except where there are exceptional circumstances where the claimant’s financial need overrides affordability, such as fleeing domestic violence)
• they are in financial need defined as a serious risk of damage to the health and/or safety of themselves or a member of their immediate family and
• they are without access to any other source of funds or support.

But as Daphne said “if it is tied up in a property then it isn’t available”.

Yes, sorry, an interest tied up in property shouldn’t count, this was just for interest.

Although the regs don’t actually say that having “access to funds or support” equates to having “no financial need”, it’s worth knowing that might not be how the DWP view it.

If you ask for a STBA, perhaps bear in mind that you may need to account for why no other help is available. Where in practice they try to draw the line, I don’t know. CAB guidance says that help here would include “help from other family members”. What about a credit card? Food bank??

I wonder whether the person determining the STBA knows that the capital is tied up in property or whether they’re looking at a box on a screen with a number in it.

I fear you may have trouble on the R2R side too - another thing we have had arguments about at stakeholder meetings. We have argued that in a case like yours it is ‘likely that the conditions of entitlement for benefit are satisfied’ (reg 5(1)(b)) but they don’t see it quite the same.

Which is why we have argued that appeal rights are necessary.

NB - Dan - I have it on my to do list to dig out all minutes of the stakeholders meetings and find that one about getting ESA without need of a claim once appeal is lodged. I have emailed DWP to ask if I can put summaries (and indeed minutes) of all meetings on the discussion forum but am awaiting a response - I will chase them up and assuming all ok I will put previous minutes up and post them regularly as they come out.

Daphne - 11 June 2014 01:03 PM

NB - Dan - I have it on my to do list to dig out all minutes of the stakeholders meetings and find that one about getting ESA without need of a claim once appeal is lodged. I have emailed DWP to ask if I can put summaries (and indeed minutes) of all meetings on the discussion forum but am awaiting a response - I will chase them up and assuming all ok I will put previous minutes up and post them regularly as they come out.

Daphne - see my post in ESA on 9/1/14 http://www.rightsnet.org.uk/forums/viewthread/5730/4
and IDS response to Q14 “No claim is required”.