Better off on IR ESA than moving over to UC?

Hi all,

Wanted to double check the legacy benefit position in relation to IR ESA for a couple who have not yet claimed UC.
Situation: husband and wife.  She is getting CESA and PIP standard rate daily living and mobility.  He has been getting CA for her and some earnings under the CA earnings threshold for a few years.

He was diagnosed with cancer a month or so ago and has just had major life changing surgery that will leave him with long term health and disability issues.  Getting out of hospital this week after a stay of about a week.  He made a claim for CESA but was turned down – waiting for reasons, seems he may not have been paid/credited with enough class 1 NIC.  They have a PIP form to complete for him.

They have around £9k in savings.

Trying to work out the best benefit situation for them both.

1. First, it seems he can stay on CA for 4 weeks (temporary break from caring) but not 12 weeks because he wasn’t in hospital for 8 weeks? Reg 4(2) SS(ICA) Regs
2. Second, does she make a claim for IR ESA to increase the personal allowance to a couple rate and get enhanced DP?
3. Third, once the 4 week period for CA caring break is over, can he still receive CA if he is able to care for her 35 hours a week?
4. If he then gets PIP, can she also claim CA for him in order to get an underlying entitlement for CA premium in IR ESA?
5. Finally, once both have PIP and CA in place, can they get the SDP x 2 in her IR ESA award as well as carers premiums?

I presume that he can be added to her IR ESA claim?  And it is the case that he cannot claim IR ESA in his own right (?) but the household is better off on the above package rather than him claiming UC and then the household going over to UC with her on CESA?

Thanking you in advance

EKS

Hi

In answer to your five bullet points (referring to the clients as ‘he’ and ‘she’ for ease):

1. As caring has no real definition, I wouldn’t generally get too hung up on the question of whether he’s currently having a break from caring because of his own ill health. For example if she has physical health problems and is at risk of falls, and he’s on hand to call for help if she does fall, that’s arguably enough to say he’s caring as long as he’s providing the 35 hours or more per week. Or similarly, if he’s providing emotional support if she’s mentally ill. Of course, if he literally does nothing for her and can’t even supervise her or support her emotionally for the required number of hours, then that might be an issue.
2. Assuming that she is on ‘old-style’ ESA, not ‘new-style’ ESA, then yes she can ask for a supersession to include IRESA and any relevant premiums/components (it’s not technically a new claim as she already claims ESA, it’s just a change in the rate payable). See LH v SSWP amongst others.
3. See (1) above but also (5) below.
4. There is nothing to preclude her from claiming PIP and CA at the same time for looking after him, providing she provides the requisite number of hours of (undefined) care. 
5. An SDP is only payable if nobody is physically paid carer’s allowance for looking after someone. So, because she gets CBESA, due to the overlapping benefit rules, he should still be eligible for an SDP in their ESA applicable amount because she won’t be physically paid CA for looking after him. She will however still have an underlying entitlement to CA which would lead to a carer’s premium being payable on the IRESA award. However, if he continues to claim CA and gets PIP, because he is physically paid CA, this would stop an SDP being payable in respect of her. So the best thing in this hypothetical scenario where he gets PIP would be for her to claim CA for looking after him, but for him not to claim CA for looking after her. They would then get 2x SDP and 1x CP plus any additional premiums and components. See 2019/2020 CPAG page 347.

I’m afraid I’ve not got time to do the UC calc or address all the points you raise but I hope that helps.

Cheers

Alex

Edited to mention that you’ve got the 3 month qualifying condition to consider for his PIP, unless he’s a special rules case.

Thank you so much for detailed reply Alex - so useful.