Forced migration Mixed Age Couple

I see what you mean about the numbers affected Amanda: there are quite a few couples where the older partner is on ESA and, although the younger partner is also disabled and would almost certainly get enough points for LCW, there hasn’t been any practical need for them to do it. 

Sometimes you find the younger partner has their own old-style ESA(c), and if they are well advised they could execute a switcheroo before the older partner’s ESA terminates upon reaching pension age.  But in probably more cases the younger partner is not on ESA(c).  That means there is no way to get the younger partner into the ESA(ir) claimant role before the older partner’s ESA terminates, so when it does terminate Article 6(2)(b) kicks in.  I think you are right that will be more than a tiny number who only avoided that by virtue of Article 8 and who therefore are affected the revocation of Article 8.

Probably still only a handful in most local authorities

PS edited to add: ... which is exactly the situation Sean’s client is in

Thank you Peter I am still struggling to find any communication from DWP when Art8 was revoked, I’m checking our notes to ensure they are up to date.

Isn’t Seans case different and not affected by the Atr8 being revoked, because his client is actually entitled to ESA(IR) rather than was being treated as though they were entitled, unless that’s what he means.

I don’t think DWP did communicate it at the time. Like I said above, I’m pretty sure this was an unintended consequence, and if they would have realised, they would have put in some sort of saving to continue the effect of Art. 8 for those already relying on it.

Sean’s case isn’t different, because ESA entitlement for the older partner does also rely on Art 8, and should have ended once Art 8 was revoked.

From DWP

Dear Amanda,

Thank you for your email. No new guidance was issued in 2022 because the changes made at that time didn’t affect existing claims covered by the exception to the requirement to make a claim for UC when the older member of the couple reached pension age. Guidance issued via circular A11/2020, which provided guidance about the closure of the SDP gateway, stated at paragraph 9 that those couples who had remained on working age HB as their award included a Severe Disability Premium would remain on working age HB until there was a change of circumstance which meant they should move to UC. This advice didn’t change when the changes were made by the 2022 regulations.

Housing Policy Enquires Team.

I thought they would probably say this.

Definitely an unintended consequence, which they apparently have still not realised!

Doesn’t really help from a legal perspective though…