‘Mixed Age Couples’ and Universal Credit (updated December 2023)
A how-to guide on claiming Universal Credit in a mixed aged couple
This article was amended in December 2023 to take account of new case law on mixed age couples.
Until the 15th May 2019 mixed age couples (MAC) where one partner is above pension age and the other is below pension age could choose whether to claim state pension credit (SPC) or universal credit (UC). Since the 15th May 2019 new rules mean that MAC can no longer make new claims for SPC or pension age housing benefit (HB(PA)). This guide answers common adviser queries about these changes.
Can a client still claim state pension credit/pension age housing benefit?
There is transitional protection for claimants in a MAC who are entitled to SPC or HB(PA) on the 14th May 2019. These claimants can continue to receive SPC and/or HB(PA) and can make a new claim for SPC or HB(PA) if they remain entitled to at least one of these pension age benefits as the same couple. If the couple are receiving HB(PA) only, the older member of the couple will need to the HB claimant to allow a new claim for SPC.
Example
Monika (64) and Dan (71) are in receipt of HB(PA) and have been since 14th May 2019. Dan is the HB claimant for the couple. Monika is working and wants to stop work. When Monika stops work the couple can claim SPC if their income is low enough.
It is important that couples with transitional protection do not claim UC or this protection could be lost.
Example
If Monika claims UC instead of SPC the claim for HB(PA) will end and the transitional protection will be lost.
There must be no break in entitlement to pension age benefits or the transitional protection will come to an end.
Example
Graham (63) and Lesley (69) are in receipt of SPC. They visit their daughter in Canada for 2 months. The couple lose their entitlement to SPC as they have been outside of Great Britain for over four weeks. When they return to the UK they will have to claim UC.
A single claimant on pension age benefits who forms a couple with someone under pension age will lose entitlement to their pension age benefits.
Example
Leo (75) is claiming SPC. He moves in with Louis (63). Leo’s SPC will stop. If the couple need to claim means-tested benefits they will have to claim UC.
Couples where one partner has to make a single claim for pension age benefits
If a claimant over pension age is in a couple with someone under pension age who has no recourse to public funds or who cannot satisfy the right to reside test for means-tested benefits the older partner will be able to claim pension age benefits as a single person. When the younger partner’s status changes and they are able to claim benefits, the couple will be treated as a new MAC and have to claim UC.
Can a claimant stay on working age legacy benefits?
Some MAC can continue to claim working age legacy benefits even when one of them reaches pension age. This applies if the younger partner is in receipt of income support (IS), income-related employment support allowance (irESA) or income-based jobseekers allowance (ibJSA). In these circumstances the legacy benefit for the younger partner can continue. A pensioner premium should be included in the claim for means-tested benefits.
Working age housing benefit (HB(WA)) can also continue to be paid in these circumstances, even though one partner is now above pension age (reg 5 HB regs 2006). If a couple are claiming HB(WA) and one partner reaches pension age the claim for HB(WA) will stop unless the younger partner is entitled to irESA, IS or ibJSA. This applies regardless of which member of the couple is the claimant for HB(WA).
Example
Ishmal (63) receives irESA and HB(WA). When his partner Aisha reaches state pension age Ishmal can continue to receive irESA and HB(WA). A pensioner premium is included in the irESA and Aisha’s state retirement pension is deducted from the irESA. If, however, Aisha was in receipt of irESA and HB(WA) when she reached pension age, her claim for irESA and HB(WA) would come to an end and the couple would have to claim UC. If Ishmal was not in receipt of irESA, but was only claiming HB(WA) this claim would come to an end when Aisha reached state pension age and the couple would have to claim UC.
Which clients will have to claim universal credit?
Most MAC who need to make a new claim for means-tested benefits from the 15th May 2019 will have to claim UC. This will include MAC who are in receipt of HB(WA) at the point at which one of them reaches pension age unless the younger partner is in receipt of irESA, ibJSA or IS.
Example
MAC Dexter (65) and Samira (61). Dexter receives irESA, an occupational pension and HB(WA). When Dexter reaches pension age his claim for irESA and HB(WA) will stop. To claim help with housing costs the couple will need to claim UC.
Example
MAC Hazel (65) and Keith (63). Both receive occupational pensions and HB(WA). Keith is the housing benefit claimant. Although Keith is the claimant for housing benefit, as he is not in receipt of IS, ibJSA or irESA, HB(WA) will stop when Hazel reaches pension age. If the couple wish to receive help with housing costs they will need to claim UC.
In case where the older partner is in receipt of ESA which includes the support group or work-related activity component it can assist with the smooth administration of the UC claim if this is made before the claimant reaches pension age. This is because entitlement to the support group or work-related activity group component can be carried over into a claim for UC in a straightforward manner if the ESA claimant has entitlement on the day that the claim for UC is made (regulation 19 UC(TP) regulations 2014). If a claimant waits until they reach pension age to claim UC the ESA entitlement will have ended and this protection will not apply. Despite this, the upper tribunal have found that if a person has entitlement to the ESA support component and they lose this when they reach pension age, even if there is gap between the UC claim and the ESA award ending, this assessment should be applied within the new UC award without the three month waiting period (see PR v SSWP (UC) [2023 ] UKUT 290 (AAC)).
How to maximise UC entitlement for MAC.
Advisers can ensure they maximise the income of MAC by doing a benefit check and considering the following:
- Can either partner claim disability benefits like PIP or attendance allowance?
- Is either partner entitled to the carers element of UC because they are providing care for a person who is entitled to disability benefits? Note, if the couple are likely to be entitled to the SDP(transitional element) it will not normally be advisable for them to make a claim for the carers element for one of the couple if this will affect or erode entitlement to this element (see below).
- Disability benefits are still underclaimed and the rules for MAC make it even more important to encourage full takeup of these benefits. This can lead to extra income and can help the younger partner reduce work-related requirements under UC.
Example
Basil is 82; he has emphysema and arthritis. He has never claimed disability benefits. His wife Alice (63) has to give up work to take care of him. The couple claim UC. Unless Basil claims attendance allowance (AA) Alice may be subject to all work related requirements in her UC claim. If Basil claims AA, Alice can claim as his carer. This will mean that the carers element is payable and Alice will be subject to no work-related requirements in her UC claim.
Limited capability for work-related activity element for the older partner
Entitlement to the limited capability for work-related activity element (LCWRA) should be considered when a MAC claims UC. There is no requirement for the partner who is over pension age to satisfy any work-related requirements to claim UC. This could make it difficult for the older partner in a MAC to establish entitlement to the LCWRA element even if they have a disability. Advisers need to be aware of the following:
- If the partner over pension age is entitled to the highest rate of disability living allowance care component, the enhanced rate of PIP daily living component or attendance allowance they are automatically treated as having LCWRA. The LCWRA element should then be payable in the UC claim from the fourth UC assessment period.
- If the partner over pension age is in the support group/work related activity group for ESA when the couple claim UC, the LCWRA or limited capability for work (LCW) element (if LCW began before 03/04/17) should be payable in the UC claim (reg 19 UC(TP) regs 2014). To benefit from this provision UC must be claimed before the ESA claim ends. This will mean making a claim for UC before the older partner reaches pension age. If a couple doesn’t make a claim for UC until the ESA claimant reaches pension age, entitlement to ESA will have stopped. However, they should still be entitled to the LCWRA/LCW when they do claim UC without a waiting period. This is because in PR v SSWP (UC) [2023 ] UKUT 290 (AAC) it was found that imposing a waiting period on this group constitutes unlawful discrimination.
- If none of the above apply, but the older partner is likely to have LCWRA, the claimant should ask the DWP to conduct a work capability assessment (WCA) to assess whether they have entitlement to the LCWRA element. As the older partner in a MAC will not have any work-related requirements it is not clear whether the DWP will process a request for a WCA expediently in these circumstances.
Severe Disability Premium Transitional Element
Since the introduction of the severe disability premium transitional element SDP(TE) it is important to factor this entitlement into advice for mixed-age couples. The amount of SDP(TE) is fixed in the first UC assessment period, this means that advisers should consider pursuing lost SDP entitlement prior to a claimant reaching pension age. As the SDP(TE) will be eroded if a claimant becomes entitled to an additional or an increased amount of a UC element (except for the childcare element) after the first UC assessment period any potential increased entitlement, such as for the limited capability for work-related activity (LCWRA) element, should be in place before the client has to claim UC. See the following example for the difference that this can make to UC entitlement:
Example
Joe and Jacinda. Joe will reach pension age in 6 months time, he receives income-related ESA (irESA) with a support group component. He and Jacinda both receive PIP daily living component, they live alone and their son claims carers allowance for looking after Joe. They come to you for benefits advice.
To maximise UC entitlement the couple should consider asking the son to relinquish the claim for carers allowance so that a couples rate SDP could then be included in the claim for irESA. This would then mean that the higher SDP(TE) would be payable in the UC award. They should also claim UC prior to Joe reaching pension age so that the LCWRA element will be included in the claim for UC straightaway. If the son reclaims carers allowance he should not do this until after the first UC assessment period or it might affect entitlement to the higher rate of the SDP(TE).
If the couple do not receive benefit advice there is a risk that a single SDP(TE) will be paid. Furthermore, if the couple delay claiming UC until Joe reaches pension age the LCWRA element will not be payable from the begining of the UC claim. Even if Joe subsequently re-qualifies for this element if this is after the first UC assessment period this will erode entitlement to the SDP(TE).
Note, it is important that the couple do not do anything to affect their entitlement to the SDP(TE) in the first UC assessment period. This could happen for instance if someone became entitled to the carers element or carers allowance for taking care of them.
Advisers working in Local Citizens Advice can receive help from the Expert Advice Consultancy Service if they are unclear about advising in individual cases
Rachel Ingleby works in the Welfare Benefits Expert Advice Team at Citizens Advice.
