Joint claim for IR-ESA - one unable to work, one able

My clients are a couple. The husband is self-employed but has to stop work temporarily because he’s had a heart attack. The wife doesn’t work because she’s looking after a child under the age of 5.

Should they put in a joint claim for ESA? I assume she won’t be required to seek work etc due to the age of her child? Once the husband is well he’ll go straight back to self-employed work so I don’t think they’ll need to claim JSA at any point.

Just out of interest, if the child was over the age of 5, and she just wasn’t working out of choice, would they be allowed to claim ESA as a couple while the husband is ill or would they have to claim JSA as a couple and she would be required to seek work until he is well enough to work again?

Thanks

P.1059 WBH 2014-15 lays out the rules around when the partner of an ESA claimant can be required to attend a WFI, which can be summarised as they’re both working age, the claim has been running for 26 weeks or more, and they’re being paid the couple rate. Unless the child is under 1, then the partner wouldn’t be exempt (see p.1060).

However, I don’t think the partner can be required to undertake work-related activity by attending the WFI, see p.1061 re: the exemption from the requirement to draft an action plan. Effectively, the WFI is a one-off interview for the partner, and you can request deferral on the grounds that it wouldn’t be useful.

However, if JCP insist, it’s best to advise the partner to attend to avoid a potential sanction, particularly as the nature of the one-off WFI could mean that, once missed, the only means to get full benefit reinstated is though appeal rather than simply attending another WFI.

I have a couple where the husband is on SSP., I assume he cannot make a a claim for Income Support to top up to couple rate and his wife who also has poor health will have make a claim for ESA, income related.

They could do either - he could make a claim for IS - being in receipt of SSP is one of the situations in which you can claim IS. Or the wife could claim ESA which would be a higher amount after 3 months. Or if either of them have any DLA/PIP then IS would be a better option due to the disability premium.

Would his wife be expected to attend a WFI if he claims Income Support? Agree ESA better option given the fact that she is unwell. Discussing PIP with her as well.

same conditions as Paul put above - pg 1059 of CPAG handbook

I’d overlooked these regs until now so thanks Paul for reminding us of them.  The definition of “partner” found in Reg 2(1) appears important here:

“ “partner” means a person who is a member of the same couple as the claimant … but only where—

(a)  the claimant has been awarded a specified benefit at a higher rate referable to that partner…”

Section 2AA Administration Act 92 then defines “at a higher rate referable to a partner” as follows:

“(3) For the purposes of this section a benefit is payable to a person at a higher rate referable to his partner if the amount that is payable in his case–

(a) is more than it would be if the person concerned was not a member of a couple;

or

(b) includes an increase of benefit for his partner as an adult dependant of his.”

Applying the above to Geep’s client, it seems if the claimant had not returned to self-employment after 26 continuous weeks and instead remained on ESA then his partner would, from wk27, be subject to a WFI as the rate of his ESA at that point (£113.70 + a possible component) would be greater than what he’d receive if he were single (ie £72.40 + same component).  If the component concerned was the support component then the couple EDP would also be greater than the single EDP in his ir-ESA.  However, if by wk27 he was also receiving the daily living component of PIP then the rate of his ESA as a single person would include the SDP and, therefore, be higher than the ESA he’d get as a couple.  Consequently, it seems his wife would not be classed as his partner under Reg 2(1) above and so she would not be subject to WFI.

It’s unlikely that Sanwyp’s client’s wife would be subject to a WFI if he topped up his SSP with IS, given that he’d only qualify for SSP for 28 weeks.  Given the WFI requirement re a partner only arises after the claimant has been on the benefit (here IS) for 26 continuous weeks, ie from wk 27, I doubt the requirement would arise.  If he went onto ESA after his SSP expired I think he has to be on ESA for a further 26 continuous weeks until the WFI requirement for partner arises, ie there seems no linking rule between SSP and ESA for the purposes of when partner is subject to a WFI.  If, instead of him claiming IS, she claimed ir-ESA, whether he (as her partner) was subject to a WFI at wk27 of her ir-ESA claim would depend on whether he qualified for any cb-ESA upon the expiry of his SSP.  If he was so entitled he’d be exempt from the partner WFI rule by virtue of Reg 7 of the above 2003 Regs (however, he might then be subject to WFIs as an ESA claimant in his own right).  If he wasn’t entitled to cb-ESA then it seems he would be potentially subject to a WFI as his wife’s ir-ESA would be payable at the couple rate + component which would be greater than what she’d get as a single claimant.  However, Sanwyp mentions discussing PIP with wife in which case see Geep’s case above.