Change in circumstances ESA

Lcbella

I have recently split with my ex partner. He was the main claimant for our Joint ESA claim. We both receive PIP and the disability premiums that come with ESA.!

I phoned income support to start a new claim as I'm now classed as a lone parent. They said to me that I cannot claim income support because I haven't been receiving the Severe Disability Premium. I tried to explain to them that on my ex partners ESA, he received the couple's rate Severe disability premium so surely that should mean that I was receiving it/entitled to it. But they have said no and told me to claim Universal Credit.!
This would put me in a bad situation money wise as I wouldn't be receiving the Severe Disability Premium that I got when with my ex.!
They have also said that universal credit might reject my claim and send me back to income support as UC may say I am eligible for SDP but won't know until I put a claim in. It's hard dealing with the uncertainty.!
I was just wondering if what they are saying is correct, regarding myself not having received SDP?!
Thanks in advance!!

sportsarb

They are correct. You weren’t receiving ESA. Your partner claimed it and you were included on his claim as a partner but in no respect were you on a joint claim, you won’t have signed a declaration. Your partner may have been entitled to the high rate because of your inclusion on the claim but that’s it.

You will need to claim UC.

pmlindyloo

Do you, by any chance, claim Housing Benefit in your name?

Lcbella

What doesn't make sense to me is why they would pay the Couples rate Severe disability premium to just him and leave me with no entitlement?
Even on the claim letter is states 'extra money because you and you partner are severely disabled'

Lcbella

No housing benefit in his name. I've read that SDP is not included on housing benefit claims when ESA is being claimed

calcotti

Lcbella wrote: »

What doesn't make sense to me is why they would pay the Couples rate Severe disability premium to just him and leave me with no entitlement?
Even on the claim letter is states 'extra money because you and you partner are severely disabled'

That's how income based ESA works. One person only is the claimant.

Lcbella wrote: »

No housing benefit in his name. I've read that SDP is not included on housing benefit claims when ESA is being claimed

SDP would be included in the HB calculation but as maximum HB is paid if there is an income based ESA entitlement it's academic.

Unfortunately as you were not claiming benefits in your own name your are required to claim UC. Being included on your partner's ESA claim does not, in my opinion, meet the test included in the legislation excluding you from UC.

https://www.legislation.gov.uk/uksi/2019/10/regulation/2/made

Restriction on claims for universal credit by persons entitled to a severe disability premium

4A. No claim may be made for universal credit on or after 16th January 2019 by a single claimant who, or joint claimants either of whom—

(a)is, or has been within the past month, entitled to an award of an existing benefit that includes a severe disability premium; and

(b)in a case where the award ended during that month, has continued to satisfy the conditions for eligibility for a severe disability premium.”

Because there is no backdating on UC (except in exceptional circumstances) you need to claim as soon as possible. You will only get the Standard Allowance to start with. You will need to provide a Fit Note if you wish to be treated as too ill to work. You will then have to have a Work Capability Assessment. If you are found to have Limited Capability for Work and Work Related Activity you will get the LCWRA element from your fourth payment.

On the plus side because you will now be claiming benefits in your own name you will get NI credits towards your state pension - while you were simply added to your partner's ESA claim you were not getting NI credits (unless you are getting them through another route).

pmlindyloo

calcotti wrote: »

That's how income based ESA works. One person only is the claimant.



SDP would be included in the HB calculation but as maximum HB is paid if there is an income based ESA entitlement it's academic.

Unfortunately as you were not claiming benefits in your own name your are required to claim UC. Being included on your partner's ESA claim does not, in my opinion, meet the test included in the legislation excluding you from UC.

https://www.legislation.gov.uk/uksi/2019/10/regulation/2/made

Restriction on claims for universal credit by persons entitled to a severe disability premium

4A. No claim may be made for universal credit on or after 16th January 2019 by a single claimant who, or joint claimants either of whom—

(a)is, or has been within the past month, entitled to an award of an existing benefit that includes a severe disability premium; and

(b)in a case where the award ended during that month, has continued to satisfy the conditions for eligibility for a severe disability premium.”

Because there is no backdating on UC (except in exceptional circumstances) you need to claim as soon as possible. You will only get the Standard Allowance to start with. You will need to provide a Fit Note if you wish to be treated as too ill to work. You will then have to have a Work Capability Assessment. If you are found to have Limited Capability for Work and Work Related Activity you will get the LCWRA element from your fourth payment.

Interesting that they include the phrase joint claimants either of whom

plus entitled to an award of an existing benefit - not 'in payment' that includes an award of SDP.

Am I grasping at straws here?

Will be interesting to see whether the UC award 'throws' it back to Income Support.

Also, if the OP made a claim for housing benefit as a single claimant would it still trigger a move to UC or would it just be classed as a change of circumstances since the OP remains in the same rented accommodation?

Sorry, OP just trying to see if there is a way round your situation and hoping some of our 'experts' will consider the points I have raised.

calcotti

pmlindyloo wrote: »

Interesting that they include the phrase joint claimants either of whom

plus entitled to an award of an existing benefit - not 'in payment' that includes an award of SDP.

OP is not a single claimant. Nor is OP a joint claimant so I think the phrase "joint claimants either of whom" is not applicable. I therefore believe OP is not captured by this regulation and has to make a claim for UC. For the OP to be included the legislation would need to say something like "a single claimant in respect of whom a SDP has been included in the benefit of another claimant."

pmlindyloo wrote: »

Also, if the OP made a claim for housing benefit as a single claimant would it still trigger a move to UC or would it just be classed as a change of circumstances since the OP remains in the same rented accommodation?

THE OP is not currently claiming Housing Benefit, their (ex)partner is. Any claim for HB by the OP would be a new claim and they are not permitted to make a claim unless they are excluded from claiming UC, which i believe they are not.

The (ex)partner is in a position where they can get their ESA revised because they are the claimant and, in this case, because of the SDP, even if they move to a different local authority could make a new claim for HB. The OP is not yet in the means tested benefits system.

sportsarb

pmlindyloo wrote: »

Interesting that they include the phrase joint claimants either of whom

plus entitled to an award of an existing benefit - not 'in payment' that includes an award of SDP.

Am I grasping at straws here?

Will be interesting to see whether the UC award 'throws' it back to Income Support.

Also, if the OP made a claim for housing benefit as a single claimant would it still trigger a move to UC or would it just be classed as a change of circumstances since the OP remains in the same rented accommodation?

Sorry, OP just trying to see if there is a way round your situation and hoping some of our 'experts' will consider the points I have raised.

Joint claims to JSA were a thing and presumably that is why that reference is made. Both claimants in a JSA joint claim make separate claims, which are then joined, but nominate a single payee for the claim. Thus they are both claimants and have awards.

This doesn’t exist where a joint claim wasn’t required for JSA where an exemption existed or for claims to ESA where you claim an allowance for your partner.

calcotti

pmlindyloo wrote: »

plus entitled to an award of an existing benefit - not 'in payment' that includes an award of SDP.

In respect of this I have seen some discussion about this elsewhere. I think the consensus was that to be entitled you need to have made a claim i.e. the claimant has to have an existing benefit. I know it can be argued otherwise but if you do it means that anyone in receipt of a qualifying benefit first needs to have all of their circumstances examined in order to see of they would qualify for a legacy benefit which would include the SDP before deciding whether a UC claim can be accepted. This simply doesn't seem very practical given that legacy benefits and UC are separate systems.

pmlindyloo

Thanks all.

Have been reading this Rightsnet's thread

https://www.rightsnet.org.uk/forums/viewthread/13872

and this situation is discussed within this thread.

Hope the OP updates us on what happens with her UC claim.