Council Tax Disregard for SMI - post end of CB ESA

belinda1960

Hi everyone. A friend recommended me to the forum.

I have a few queries, but will start with this one.

My partner is severely mentally impaired (SMI) and has been on IB/ESA for many years. She lives alone. As a result she has been disregarded for Council Tax , i.e. has to pay no Council Tax.

She is now on Contribution Based ESA (CB ESA), having formerly been in the Support Group. Long and separate story about how this happened, but basically the DWP have been toughening up on the guidance re use of the "substantial risk" criteria as per ESA Regulations 29 and 35, and have decided in their infinite wisdom that unless my partner is being constantly sectioned, then admittance into the SG is no longer valid. We did not bother appealing and do not want to.

She does not claim DLA or PIP, and does not want to.

My query relates to her ongoing entitlement to a disregard for Council Tax. The criteria for the disregard varies from local authority to local authority. All local authorities require GP confirmation that an applicant is in fact SMI. Many authorities also require that an applicant be "entitled" to one of a list of benefits, which includes ESA.

Now here is the quandary. In 3 months her CB ESA will come to an end (i.e. after 365 days). She has plenty of savings and thus it would take years for her assets to fall below £16K, and thus she will not be able to apply for income based ESA in the foreseeable future. .

So in late Jan 2017 do we inform her Local Authority that she is no longer in receipt of CB ESA, or given that she is still "entitled", but not in "receipt" of CB ESA, do we just do nothing on the basis that strictly speaking there has not been a change in her circumstances !? I have heard rumours that the DWP write to Local Authorities when certain benefits cease, but i understand that more, or only, occurs in relation to means tested benefits.

Now that CB ESA is ending for many mental health sufferers the above quandary must surely be being experienced by many citizens.

The most relevant legislation in this regard appears to be SI 1992/548 (easy to locate on Google) and refer to Sn3 - note, however, that the list of benefits is out of date, and again it refers to "entitled to" as opposed to "in receipt of" :

CIS

My query relates to her entitlement to a disregard for Council Tax. The criteria for the disregard varies from local authority to local authority. All local authorities require GP confirmation that an applicant is in fact SMI. Many authorities also require that an applicant be "entitled" to one of a list of benefits, which includes ESA.

The criteria for an SMI disregard (assuming England & Wales) is the same everywhere- it's not a reduction over which local authorities have been given delegated powers.

If a person is not certified as SMI and in receipt of a qualifying benefit (or otherwise entitled to the benefit) then they do not qualify - the same situation applies everywhere in England and Wales.

You would need to prove entitlement to a benefit if it's not actually in payment.

DWP have nothing to do with Council Tax disregards and will not notify the local authority with respect of that (they may however contact the local authority if Council Tax Reduction/Support is in payment)

SI 548 /1992 is the original Discount Disregards Order and has been amended over the years to add/remove qualifying benefits as they've changed.

Craig

belinda1960

Thx Craig for swift reply.

So are you saying that my partner will still be eligible because a) she is SMI certified, and b) is otherwise entitled to CB ESA, except for the fact that the DWP no longer pay the benefit beyond 365 days ?

As far as I am aware the law merely says "entitled to" as opposed to in receipt of !?

Alice_Holt

To stay "entitled" your partner will need to continue with her ESa claim - i.e. completing ESa 50 forms and attending WCA's. She will receive no payment (as in the CB post 365 days WRAG), but will be credited NI credits towards the State Pension.

If she is placed in the Support Group in a future reassessment then it is possible ESa payments may resume.

belinda1960

Thx Alice. I understand what you say, but surely the criteria for entitlement as per the relevant Council Tax legislation has not changed, it is just that the DWP now stop paying one particular benefit after 365 days !? There appears to be no Statutory Instrument which clarifies the ruling for CT disregard once payment of CB ESA stops.

Ames

You seem a bit confused about ESA.

There are the two groups based on health - Support Group and Work Related Activity Group.

Then there are two bands based on income - contributions based and income based. .

Does your partner have any other income, or savings above £16k? And are you classed as living together as a couple?

If the answers are no then she should qualify for income related ESA when the 365 days run out.

CIS

There is no stautory instrument covering what happens when ESA ceases in respect of an SMI disregard (pr for any other qualifying benefit).

The 'entitled to' bit is the key - you can only be 'entitled to' a benefit where the rules of that benefit allow you to be.

The law tends to take a straight forward approach to what a defintion means and what a normal usage of the term would be - I think it would find that 'entitled to' also includes any statutory time limits on entitlement. I'm not aware of any case where it has been tested tested - you'd probably have to look at case law regarding benefits to find any arguments over the definition of being entitled to a benefit and any time limits as it reaches beyond council tax legislation.

An underlaying entitlement to a benefit is not one I've ever dealt with regarding SMI - in 10 years of dealing with council tax claims I never had anyone ask that .

EDIT:
As above (which crossed with my post) - take a look at any other benefits for which entitlement may come up and which is qualifying for SMI.

Craig

belinda1960

Thx Ames ; not confused at all. Unless she lives to 180 my partner will never be entitled to income based ESA as she has substantial savings.

We do not live together.

I am , however, confused by the fact that her entitlement to a CT disregard may(or may not) end once her CB ESA runs out. She meets the criteria for ESA and SMI, but as payment of CB ESA ends after one year, then it may well be that the CT disregard should continue as it is not means tested.

Diary

After 365 days she will no longer be entitled to esa under legislation. It is a change in circumstances and must be reported to the local authority. DWP have decided she will no longer be entitled to esa cb based, the same way they also decide on entitlement after wca's.

The council tax disregard criteria legislation has not changed, she simply doesn't meet the strict requirements. If she wants council tax exemption she will need to claim income based ESA whether or not she receives actual payment or credits only. The law allows for disregard under specific circumstances, if you don't meet all those circumstances you don't qualify, there is no need to legislate further than this.

On a side note, it's very strange to me a person is compelled to claim benefits to receive the disregard - makes no sense when all the other criteria fit.

belinda1960

Yes Craig ; I spoke to a local council today (not ours) albeit on a hypothetical basis and they said "wow" that's an interesting question. I was put through to a more senior officer and they admitted that they were in fact aware of the new CB ESA rules, but were in fact turning a blind eye to the matter of SMI disregard because it was a) unclear what the ruling should be, and b) the DWP as you said Craig do not let them know when CB ESA ends.

Anyhow, this first query was meant to be my simplest query lol

Alice_Holt

belinda1960 wrote: »

Thx Alice. I understand what you say, but surely the criteria for entitlement as per the relevant Council Tax legislation has not changed, it is just that the DWP now stop paying one particular benefit after 365 days !? There appears to be no Statutory Instrument which clarifies the ruling for CT disregard once payment of CB ESA stops.

Sorry, I don't understand the point you are making. Can you clarify?

Remember it is "entitlement" that counts for SMI, not payment.
You are describing the situation where payment stops but entitlement continues (providing your partner continues with her ESa claim).
If she fails to return an ESa 50 form, fails to attend a WCA, or fails the WCA assessment then the CT disregard would end. She would then not be entitled to the benefit.

Some more info here:
"Some people, including those classed as severely mentally impaired, can be completely disregarded for council tax purposes. This means they do not have to pay council tax, or they may pay a reduced rate. This applies to anyone who meets all of the following criteria:

has a severe impairment of intelligence and social functioning which appears to be permanent

has a certificate confirming this impairment from a registered medical practitioner, usually the person's GP or consultant

is entitled to certain disability benefits - the most common qualifying benefits are Attendance allowance (lower or higher rate), Disability living allowance (higher or middle rate care components) and the new Personal independence payment (lower or higher rate of the daily living component)."

Her entitlement to ESa can continue (and is evidenced by NI credits) even without an ESa payment.

Do check with your local council that ESa WRAG group is a qualifying benefit for SMI, and that the disregard isn't only for those placed into the Support Group of ESa.
I think ESa (in either group) counts but am not completely sure