Terms & Conditions

[Peter Barker]

It looks as if the younger partner originally had “old-style” ESA(c) topped up by ESA(ir). The ESA(ir) top-up ended when the older partner’s state pension income kicked in. ESA(c) continued as it is a non means-tested personal entitlement. At this point, it looks as if HB should have terminated because they were a mixed age couple whose HB award had become subject to the HB(SPC) Regs. The working age regs only apply where the claimant or partner is entitled to and in receipt of ESA(ir), which was no longer the case.

There is one possible way to save the HB award though. ESA(ir) is now back in payment because they have become entitled to an SDP – this takes effect as a superseding decision increasing the ESA to include an income-related top-up. Is this because something has changed: the second member of the couple has become entitled to PIP/AA, or a non-dep has moved out for example? Or would they have been entitled to an SDP at all times if it had been investigated last January? If there should have been an SDP last January, the decision to stop paying ESA(ir) could still be revised following an out-of-time mandatory reconsideration and, if necessary, an appeal. The HB award would then not need to terminate after all.

If it is correct that they didn’t get ESA(ir) until recently, HB should have terminated a year ago. This could be a suitable case for a closed period superseding decision, leaving HB in payment from now on.