HB overpayment ESA (IR) or cont

Good morning
I visited a tenant yesterday who has an HB OP due to receiving ESA contribution. Tenant also receives ESA (IR) so LA now advising HB OP in excess of £2k

Is there an actual question involved here?

There is no obvious HB overpayment simply because a claimant is receiving both C-ESA and IR-ESA. ESA is a single benefit - and it will very often be the case that the amount of the contributory part will be below a person’s applicable amount (e.g. because C-ESA can only be paid at a single person rate and the claimant is part of a couple, or because there is no enhanced disability premium in C-ESA, only in IR-ESA, but being in the support group entitles a person to the premium). If C-ESA is below a person’s applicable amount they are also entitled to IR-ESA to bring their income up to the level of their applicable amount. So it is very often the case someone will be receiving - and be properly entitled to - C-ESA and IR-ESA at the same time.

All of which means that receipt of both, by itself, does not mean that a person has been overpaid; either overpaid ESA or overpaid HB. I suppose there is potential for someone to be paid the ‘full’ amount of C-ESA and IR-ESA at the same time (or to put it another way, for the IR-ESA award to take no account of the C-ESA that is paid). But given that ESA is a single benefit administered by DWP, that would be an extremely rare scenario indeed.

Even in that extremely rare scenario, the ‘first’ overpayment will be an overpayment of ESA. And because the amount of C-ESA a person is entitled to will (nearly) always be below the level of their IR-ESA entitlement (i.e. the amount of IR-ESA they would be entitled to if not receiving C-ESA) it is very, very likely that even after any overpayment, there will still be some IR-ESA entitlement. And that passports a claimant to full HB entitlement.

A person is not penalised twice in overpayment recovery - if the ESA overpayment still results in some level of IR-ESA entitlement, there cannot be a HB overpayment at the same time. So this one needs some investigating.

yes I though that, sorry been away for a while just getting back into legacy benefits as been concentrating on UC..

thanks

sorry been off for a while
ESA award letter advising ESA (IR)  £41.20 due to income (ind Inj) but as due contribution ESA you will receive £138.20. Therefore HB not due. is this correct ?

Legally, ESA(ir) is not determined after ESA(c), with ESA(c) deducted as income: both are determined simultaneously, and the ESA(ir) amount takes no account of the ESA(c).

If the claimant is entitled to both ESA(c) and ESA(ir), and the ESA(ir) is higher, the higher amount is paid but the first £138-odd is deemed to be ESA(c).  If ESA(ir) is lower, then only ESA(c) is paid.

In this case, the £41.20 is the applicable amount minus the IIDB income, which means only ESA(c) is paid.  For HB purposes, the income they use will be ESA(c) plus IIDB, which will be quite a bit above the applicable amount and so less than max HB entitlement.