UC or not UC? A mixed-age question

Simon Osborne reviews a couple of queries regarding ‘mixed-age’ couples and when universal credit (UC) is, or is not to be, the main subsistence benefit. As the answers suggest, the individual facts are very important.

Facts
Sue is going to reach pension age on 1 June 2020. She is currently getting income support (IS) and housing benefit (HB). She has no disabilities. She is a carer for her husband Tom, who is severely disabled and gets the enhanced rates of both the daily living and mobility components of personal independence payment. Tom is under pension age. They live in local authority rented accommodation.

The DWP writes to Sue saying that when she reaches pension age, her IS and HB will stop and she and Tom will have to claim UC instead.

Query
Is that correct? Is Sue not prevented from claiming UC by the ‘severe disability premium (SDP) gateway’? What if she defers claiming her state retirement pension? She has been advised (although not by the DWP) that will mean she can stay on IS and HB.

Answer
On these facts, the DWP is correct. The IS and HB will end, and to continue getting means-tested support, Sue will need to claim UC jointly with Tom. On the facts, the SDP gateway does not apply. Deferring Sue’s state retirement pension will have no effect on these matters.

When Sue reaches pension age, she and Tom will have become a ‘mixed-age’ couple. As she is the claimant, Sue will no longer satisfy the age rules for IS. That will mean that the ‘working-age’ HB rules no longer apply. As a mixed-age couple, the basic rule is that she and Tom cannot start to get ‘pension-age’ HB. (This basic rule is contained in the Welfare Reform Act 2012 (Commencement No.31 and Savings and Transitional Provisions and Commencement No.21 and 23 and Transitional and Transitory Provisions (Amendment) Order 2019, SI No.37 – usually called ‘the No.31 Order’).

The main exception to the application of the basic rule is indeed the SDP gateway. Where that applies, that prevents (by law) a claim for UC. In turn, the claimant is then able still to get means-tested ‘legacy’ benefits – ie, including IS and HB. In this case, were the SDP gateway to apply, special rules mean that, because she would be prevented from claiming UC, Sue would be treated as still satisfying the IS age rule, even though she has reached pension age. She would then still be able to get working-age HB. (These special rules were made in the amendments to the No.31 Order by the Welfare Reform Act 2012 (Commencement No.31 and Savings and Transitional Provisions (Amendment) Order 2019, No.935. See also the official guidance in Housing Benefit Adjudication Circular A9/2019.)

However, even though Tom has a qualifying benefit for the SDP, because he is part of a couple with Sue and she does not satisfy the SDP conditions, no SDP is included as part of Sue’s IS or HB. Therefore, the SDP gateway will not apply in this case, and they are not prevented from claiming UC. They are not living in specified or temporary accommodation and so cannot get HB while getting UC. Deferring claiming her retirement pension does not alter the fact that Sue will have become a member of a mixed-age couple, and has no bearing on the rules regarding when a claim for UC becomes necessary as a result. It is also worth noting that if she does defer claiming her retirement pension, that will still count as her ‘notional’ income for the purposes of calculating UC.

Facts
Peter is of pension age (67 years). He is not entitled to an SDP in any legacy benefits and is doing some paid work. He has recently formed a couple with Toni, who is under pension age and is a ‘person subject to immigration control’. Peter’s working tax credit (WTC) was terminated on formation of the couple. He has been advised he can claim UC instead.

Query
Is that correct? Peter is of pension age, and surely that is a problem?

Answer
It is not correct. Being of pension age, combined with having a partner ineligible for UC on certain grounds, is indeed a problem as far as UC entitlement is concerned. Peter might instead be entitled to pension credit (PC) and ‘pension-age’ HB as single person (although his resources will be assessed jointly with those of his partner).

Peter cannot be entitled to UC as a couple with Toni, as she is a person subject to immigration control, and therefore does not herself satisfy the basic conditions for UC. Note that the mere fact of one person being of pension age would not in itself prevent a mixed-age couple from being entitled to UC as a couple – see regulation 3(2) of the Universal Credit Regulations 2013.

Peter might instead have been entitled to UC as a single person where the partner is ineligible for UC on certain grounds. Rules specifically allow a claim in that situation (regulation 3(3) of the Universal Credit Regulations). However, as he is of pension age, he does notsatisfy (as a single person) the basic UC requirement to be under pension age. For that reason, Peter cannot get UC.

However, he might instead be entitled to PC and ‘pension-age’ HB, as a single person. It is true the default position is that a mixed-age couple cannot start to get those benefits. On the facts of this case, the ‘SDP gateway’ does not apply, so they are not prevented from claiming UC (or enabled to make a new claim for PC or legacy benefits including WTC) by that. But the problem here is that they cannot get UC as a couple, and neither can Peter get UC as a single person.

So there needs to be a mechanism whereby he can still get PC and pension-age HB instead. Amendments to the main rules about mixed-age couples (ie, the ‘No.31 Order’) provide for that. The relevant amending legislation (the Welfare Reform Act 2012 (Commencement No.31 and Savings and Transitional Provisions (Amendment)) Order 2019, No.935) amended Article 7 of the No.31 Order, to provide in effect that where the younger member of a mixed-age couple is ineligible for UC on certain grounds (including where, as here, the partner is a person subject to immigration control), then the pension-age member is instead able to get PC and pension-age HB as a single person. (Other grounds relating to the younger partner include where s/he is not ‘in Great Britain’ – including failure ofthe righttoreside test– or is a prisoner.) In these situations, the pension-age member of the couple (ie, Peter, in this case) is treated as a single person, even though h/she is actually part of a couple. These special rules are described in the official guidance in the Housing Benefit Adjudication Circular A9/2019, paragraphs 15–17.