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Forced migration Mixed Age Couple
I have a MAC: he reached Pension Age in 2020, she remains under pension age and claims ESA Conts based (as an aside they have a disabled child and tax credits and both receive high rate PIP elements for themselves.) In 2023, the Housing Benefit Team advised that his reaching Pension Age should have forced a move to UC. The couple argued this unsuccessfully. HB stated that the system missed this change, and allowed the claim to remain ‘paid’ up until 2023 when they realised (no reclaim, no overpayment) but they ended the claim. The family have refused to claim UC which is fine but the guidance suggests they don’t need to (which i assume is why the system never threw it up.) I have asked HB again citing the below BUT the response is that Conts based benefits arent a passporting benefit/protected and the rules don’t apply. My argument is that it isnt about IR/IB in this case - she is the lead claimant and her circs havent change - their income has, by all means do a re-calc on their income now he has a pension, but she is the lead claimant and continues to claim the benefit their claim is based on.
Do i have a case to continue an argument and how!
A9/2019 Mixed age couples: further guidance (revised) - GOV.UK (http://www.gov.uk): particularly Annex A:
Mixed age couple in receipt of HB and other DWP legacy benefit – younger member of the couple is lead claimant of the legacy benefit
Where a working age couple who are in receipt of a DWP legacy benefit and working age HB and the older member of the couple is approaching state pension age but the younger member of the couple is the lead claimant on the DWP legacy benefit claim, the mixed age couple will remain on the legacy benefits that they are currently entitled to. The mixed age couple will continue to receive working age HB until the younger member of the mixed age couple reaches State Pension age or is no longer in receipt of the DWP legacy benefit.
the important question is -
is she on new style ESA or old style ESA
if old style ESA and used to also get top up of income related ESA
if this ended as partner’s state pension + conts based ESA wipes out any remaining IRESA top up then HB correct to end
younger needs some IRESA to keep HB in payment once became a mixed age couple.
if there was a carer premium included or SDP then this would probably take them onto IRESA (if just getting full SP and no other occ pensions)
do they not qualify for SDPs?
It is very much old style ESA - they both transitioned from Incapacity Benefits c 2013/14. They had all the disability premiums due to both having both elements of enhanced DLA and PIP but possibly neither registered as the other’s (or child’s) carer… she continued to receive Conts ESA with Support Related component when his SP started and yes, he received just a basic SRP.
HB is supposed to terminate when the older member of a working age couple becomes a pensioner and the couple “ages into” mixed age status. There is a question about whether the legislation successfully schieves this, but let’s assume for a moment that it does.
Even if the legislation does successfully terminate HB in such cases, there are exceptions:
- when the HB award would not be governed by the HB(SPC) Regs, which in turn means that the younger partner is entitled to a legacy DWP means tested benefit such as ESA(ir) when the older partner becomes a pensioner;
- if the older partner became a pensioner between January 2019 and January 2021, as in this case, and either member of the couple was entitled to HB or a legacy benefit including an SDP within the month before they became a mixed age couple
My theory is that the older partner was on ESA(ir) which terminated when he became a pensioner, and the younger partner has never topped up her ESA(c) with ESA(ir) which (subject to the amount of pension income) she could still do. HB correctly did not terminate in 2020 because of the SDP rule I mentioned above, and the Council forgot about that when they picked the case up in 2023. They should have left HB in payment ... but here is where it gets messy:
- as it appears they were not in receipt of ESA(ir) from 2020 onwards, a quirk of drafting in Article 8 of the WRA 2012 No 31 Commencement Order means they should have had a working age HB applicable amount. With pension and ESA(c) as income they possibly wouldn’t receive full HB (but then with double SDPs they might). I have often wondered whether there had ever been a single case where that actually happened, well here’s one
- but if ESA(ir) can be awarded now (and maybe backdated to 2020 if you’re lucky) they should get full HB for sure.
as above add IRESA on to her conts based backdated to 2020, and then appeal HB closure.
Thank you all. Quite honestly HB at any rate would be satisfactory, and i think with the SDP premiums even with SRP and ESAconts and CTC we’d still get something. As is, their outright refusal to claim UC means they get nothing in the way of help with housing costs from anywhere.
HB is supposed to terminate when the older member of a working age couple becomes a pensioner and the couple “ages into” mixed age status. There is a question about whether the legislation successfully schieves this, but let’s assume for a moment that it does.
Even if the legislation does successfully terminate HB in such cases, there are exceptions:
- when the HB award would not be governed by the HB(SPC) Regs, which in turn means that the younger partner is entitled to a legacy DWP means tested benefit such as ESA(ir) when the older partner becomes a pensioner;
- if the older partner became a pensioner between January 2019 and January 2021, as in this case, and either member of the couple was entitled to HB or a legacy benefit including an SDP within the month before they became a mixed age coupleMy theory is that the older partner was on ESA(ir) which terminated when he became a pensioner, and the younger partner has never topped up her ESA(c) with ESA(ir) which (subject to the amount of pension income) she could still do. HB correctly did not terminate in 2020 because of the SDP rule I mentioned above, and the Council forgot about that when they picked the case up in 2023. They should have left HB in payment ... but here is where it gets messy:
- as it appears they were not in receipt of ESA(ir) from 2020 onwards, a quirk of drafting in Article 8 of the WRA 2012 No 31 Commencement Order means they should have had a working age HB applicable amount. With pension and ESA(c) as income they possibly wouldn’t receive full HB (but then with double SDPs they might). I have often wondered whether there had ever been a single case where that actually happened, well here’s one
- but if ESA(ir) can be awarded now (and maybe backdated to 2020 if you’re lucky) they should get full HB for sure.
Peter, had the LA purposely left it in payment because of the SDP, what kind of change would now end HB after 27/01/21? I am trying to come up with some scenarios for those new MAC claims whose HB did not end because of the SDP
Do we know the outcome of this case?
[ Edited: 20 Jun 2024 at 04:06 pm by Amanda JB ]Surely when Art. 8 was revoked in 2022, then the HB award would have terminated under Art. 6(2)(b) of the No. 31 Commencement Order?
This is why we need Charles around here: forensically spotting the little things that everyone else misses. He is right of course:
Because of the deeming fiction about the older partner’s age in Article 8, their HB was assessed under the working age regs while Article 8 applied. If the younger partner is not entitled to ESA(ir), and if Article 8 no longer applies, their HB falls under the HB(SPC) Regs instead. Therefore the revocation of Article 8 on a date when they weren’t entitled to ESA(ir) was an event that caused an existing award to a mixed age couple under the HB Regs 2006 to become subject to the HB(SPC) Regs ... and promptly terminate under Article 6(2)(b).
Unless Charles is also correct about something else, which is that Article 6(2)(b) only applies if the couple were already a mixed age couple when HB was first awarded under the working age regs, but it would need a UT decision to test that.
But mixed age couples who made new claims during the SDP gateway phase would be caught by Article 6(2)(b) on the date when Article 8 was revoked, unless they had ESA(ir).
So when Article 8 was revoked, we all should have gone through our caseload and identified MAC who should have migrated to UC, but couldn’t due to the SDP, and terminated HB on the date Ar t8 was revoked?
A11/20 said: or did this change later also?
Existing HB claimants
8. SI 1152/2019 do not apply to existing claimants who have remained on working age HB because their award includes a SDP and they can remain on HB until they have a change of circumstances which triggers a new claim to UC.
Yes, I think you should have done so.
I think it is likely that this was an unintended consequence, but I can’t see any way out.
As Peter says, this will definitely be the case where the HB claim was made when the couple were already a MAC. There is a potential reading of Art. 6(2)(b) which would mean that it does not apply to cases where the original HB award was made prior to them becoming a MAC.
But we know that DWP do not interpret Art. 6(2)(b) like that, and all LAs (to my knowledge) apply Art. 6(2)(b) using DWP’s interpretation. Accordingly, even where the HB award was made prior to them becoming a MAC, the HB award should have terminated when Art. 8 was revoked.
The quote you’ve made from A11/20 is referring to the provision in Art. 8(3) which provides for HB to continue until the award terminates, even if they no longer had an SDP earlier than that.
However, once Art. 8 was revoked on 25/07/22, I don’t see how that can still apply.
This must be a vanishingly tiny cohort though. To be caught by Article 6(2)(b) at the point when Article 8 was abolished, the case would need to be one where:
1. The younger partner is not entitled to ESA(ir), and
2. Either:
(a) they made a new HB claim relying on the SDP gateway by virtue of Article 8, or
(b) they avoided HB termination following an Article 6 event during the SDP gateway period, again by virtue of Article 8
The case that started this thread might be the only one, and even in this case there is a question about ESA(ir)!
This must be a vanishingly tiny cohort though. To be caught by Article 6(2)(b) at the point when Article 8 was abolished, the case would need to be one where:
1. The younger partner is not entitled to ESA(ir), and
2. Either:
(a) they made a new HB claim relying on the SDP gateway by virtue of Article 8, or
(b) they avoided HB termination following an Article 6 event during the SDP gateway period, again by virtue of Article 8The case that started this thread might be the only one, and even in this case there is a question about ESA(ir)!
Apologies but why would it be minority of cases?
I’m assuming then these claimants’ HB should have all terminated on 25.07.22 (I’ve looked for a circular during this time and cant find one, unless it was released a lot later) I’ve found 2022/752, was it communicated at the time by DWP?
1) WA couple on HB, older partner reaches SRP age during SDP gateway, ESA (IR) ends, HB should have ended 25/07/22
2)MAC makes a claim for HB during SDP gateway, no legacy benefits in payment, HB should have ended 25/07/22
Do you think they should not be many because if entitled to SDP during the gateway period, unless there is extra income, ESA(IR) should have continued? But what if it didnt and it ended once SRP was claimed?
[ Edited: 26 Jun 2024 at 10:49 am by Amanda JB ]
This must be a vanishingly tiny cohort though. To be caught by Article 6(2)(b) at the point when Article 8 was abolished, the case would need to be one where:
1. The younger partner is not entitled to ESA(ir), and
2. Either:
(a) they made a new HB claim relying on the SDP gateway by virtue of Article 8, or
(b) they avoided HB termination following an Article 6 event during the SDP gateway period, again by virtue of Article 8The case that started this thread might be the only one, and even in this case there is a question about ESA(ir)!
I’m interested in this thread as I have a client covered by (b) - they are well past retirement age with working age partner and still in receipt of irESA + HB
This must be a vanishingly tiny cohort though. To be caught by Article 6(2)(b) at the point when Article 8 was abolished, the case would need to be one where:
1. The younger partner is not entitled to ESA(ir), and
2. Either:
(a) they made a new HB claim relying on the SDP gateway by virtue of Article 8, or
(b) they avoided HB termination following an Article 6 event during the SDP gateway period, again by virtue of Article 8The case that started this thread might be the only one, and even in this case there is a question about ESA(ir)!
I’m interested in this thread as I have a client covered by (b) - they are well past retirement age with working age partner and still in receipt of irESA + HB
If your claimant is still getting IR ESA then they are entitled under WA HB (see reg 5)
I’m interested in this thread as I have a client covered by (b) - they are well past retirement age with working age partner and still in receipt of irESA + HB
If your claimant is still getting IR ESA then they are entitled under WA HB (see reg 5)
yes, but as far as I can see they were also only entitled to irESA by virtue of the now abolished Article 8