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ESA query [cb] to [ir] back to [cb]

MNM
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Hi all, was after some input from the members.

-Client in receipt of ESA [cb]
-Client failed medical
-Client appeals and continues to recieve [cb] ESA
-During appeal phase clients ESA [cb] was converted to [ir] after 365 days (7 March 2013)
-Client wins appeal January 2014 and placed in WRAG
-July 2014 DWP conduct investigation and claim capital over 16k and removed all income related entitlement entitlement retrospectively and terminate the current award.  As well as advising of her right to reclaim.
-Simultaenously an overpayment notice has been issued.

I am lodging a MR against all the decisions, as well as lodging the MR’s I am requesting that my client, pending these appeals over [ir entitlement] be reverted back to ESA [cb] - instead of making a new claim.

QUERIES
1. My query is that will client’s eligibility revert back to [cb] following the decision to terminate award?
2. If so, I am aware client will have nil income eligibility, however, my intention is to put a SG MR/Appeal and attempt to reinstate [cb] ESA?
3. If not, will it be too late for client to make a fresh claim for [cb] ESA?

Any thoughts? or advice?

Edmund Shepherd
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I am a bit confused. As far as I can see, your client was getting cESA, which changed to irESA during an appeal hearing. You say the appeal was successful, placing the client in WRAG, meaning that from the date of the first decision, the client was entitled to cESA with the WRAC. This does not apply after 365 days and the client would need to be changed over to irESA.

From what you say, there’s no irESA entitlement due to excessive capital. You can of course appeal this if it’s wrong. The client won’t get irESA in the meantime.

Are the grounds of this “fresh claim” a deterioration in his health? Provided he’s continued to have LCW, the DMG allows the SC to be awarded if he meets the conditions of entitlement. As far as I’m aware, this would be cESA.

So, the answer I’m not 100% on is whether in cases where cESA was awarded and terminated due to time limiting, where irESA has been claimed in the intervening period, does starting to have LCWRA lead to a new award of cESA from the date of deterioration?

Which decision are you appealing to place the client in the SG? You say it’s already gone to appeal, so would this be an appeal to the UT?

I hope I haven’t got the wrong end of the stick.

MNM
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Sorry if post was confusing.

I am not seeking to appeal the decision made by Tribunal in January 2014 which placed our client in WRAG from 11/6/2012.  I am out of time and think the better route is to try and reinstate benefits asap.

The problem in this case arises due to the fact our client switched from [cb] to [ir] whilst pending appeal (7/3/2013). 

Client recieved [ir] from 7/3/2013 to April 2014. 

The DWP now want to remove the [ir] award in that period and terminate [ir] ESA.

My worry was that does the termination of [ir] esa automatically her previous [cb] entitlement or should that be reinstated?

Ultimately, if my client continues to have LCW I can lodge a supercession on deterioration grounds. 

I am lodging MR’s of the following decisions;

1. IR Entitlement decision withdrawing entitlement from 7/3/2013 - client claims to have personal capital less than 16k.
2. Decision to refuse ongoing IR entitlement - same reason - client claims to have less than 16k;
3. Ovepayment decision - on basis client never had excesive capital.

I am requesting the client be placed back into [cb] of ESA - because if she didnt qualify for IR on 7/3/2013 her [cb] entitlement should have continued and she should have remained with LCW.

Edmund Shepherd
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Given your client was in WRAG, the point at which the cESA stopped will remain the same, but the amount of money paid before then would be higher - as the award should have included the WRAC, but didn’t because JCP didn’t find him to have LCW (a decision overturned by the tribunal). So, if cESA expired in March 2013 due to time limiting, that won’t change as WRAG awards are time limited just as assessment-phase-pending-appeal awards are.

If this is the case, irESA would apply from the date the cESA expired, i.e. 07/03/13. However, I would say that arrears of cESA would be due for the period prior to the expiry of the award when the WRAC should have been included.

“My worry was that does the termination of [ir] esa automatically her previous [cb] entitlement or should that be reinstated?”

I think there’s a word missing here?

MNM
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“My worry was that does the termination of [ir] esa automatically .. END.. her previous [cb] entitlement or should that be reinstated?”

MNM
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bumping an earlier thread for input…

Can client who goes from - ESA[cb] to ESA [ir] - go back to ESA [cb] - if Income Related entitlement revised and terminated based on capital ???

S.Murphy
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If the ESA(C) was terminated as had 365 days entitlement whilst not in the support group it will only be reinstated if you can successfully argue that the client should be in the support group whether via supersession or a revision/appeal of an earlier decision.


Alternatively if the timing is right and the national insurance record is OK the client should in theory break their claim for 12 weeks (they should still have an underlying credits only claim to break) and reclaim ESA(C) in a new period of limited capability for work. If they were to do that right now the new claim is going to be made in the new benefit year so the contribution record assessed would be 12/13 and 13/14 tax years.

I think it is too late to try this now as your client won’t have paid contributions, only credits in these tax years.

MNM
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The ESA (c) was not terminated just converted to income related after 365 days.

Now the DWP decide client had capital over prescribed upper limit for day 366 so income related decision revised removing all income related entitlement.

Client was found to have LCW. Does the LCW ends just because income related ends or can client go back contribution based ESA????

I’m puzzled ...

Tom H
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MNM - 21 November 2014 02:29 PM

..Does the LCW ends just because income related ends or can client go back contribution based ESA????


In the order those questions are asked, answers are: no and yes (possibly).

Too much capital ends entitlement to Ir-ESA.  It doesn’t alter the fact that client’s CESA was time limited.  As such client can rely on section 1B WRA 2007 to support a new ESA claim.  DWP would have continued treating client as having LCW from 7/3/13 until the present provided client hasn’t claimed JSA or started work or done anything else that would be inconsistent with LCW.  The new claim would have to result in client being put in the SG in order for section 1B to bite.  We’re assuming, of course, that client doesn’t satisfy the contribution conditions on any new claim made now.  That would depend on when they last worked.  If they made a new claim now the tax years would be 2011/12 & 2012/13 (don’t get distracted by credits).

This thread is similar to this one.  I see you requested a mandatory recon of the July 2014 decision which retrospectively removed IS from 7/3/13.  The July decision was actually a revision based upon the DWP being ignorant or mistaken about the material fact that client had capital.  That MR and any subsequent appeal gives you the chance to argue not only the capital issue but also, if applicable, that CESA should not have been time limited at all, ie because client satisfied the SG conditions by 7/3/13.  Medical member would need to be on the tribunal in that event.  Winning would allow arrears of CESA all the way back to 7/3/13 and wipe out the overpayment.  See the warning in my post in the above linked thread.

[ Edited: 21 Nov 2014 at 02:52 pm by Tom H ]
MNM
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Thanks Tom

1. Client has had no break in LCW so could rely on that.  Recent tax yrs don’t help.

2. Appeal currently in against the capital - in my grounds of appeal I did ask for client to be reinstated to [cb] with nil entitlement (they haven’t reinstated) - I did this so we could do a supercession if they reinstated.

3. I will raise the issue of SG from 7/3/2014 within the appeal - to be honest I didn’t think of that - was the clients failure to raise this at the time a barrier?

4. I have several options and have read your comments in the other thread. It seems there are few possibilities. What would you think is the best :-

a) try and press DWP to reinstate cb then do supercession
b) wait for the appeal and attempt to get SG from July at tribunal
c) do a supercession from today and expect DWP to bridge this claim with original [cb] claim
d) put in a new claim

 

Tom H
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MNM - 21 November 2014 03:09 PM

2. Appeal currently in against the capital - in my grounds of appeal I did ask for client to be reinstated to [cb] with nil entitlement (they haven’t reinstated) - I did this so we could do a supercession if they reinstated.

I’m not sure what you mean by “cb with nil entitlement”.  There is no legal basis for re-instatement of the cb-ESA unless either:

(i) you persuade the tribunal that hears your current appeal that client should have been in the SG on 7/3/13.  It’s important to realise that whilst the decision currently under appeal was made in July 2014, the effective date of that decision is 7/3/13, so the tribunal cannot look at any facts occurring after that date.  Which is good news for your client.  The decision under appeal also contains two entirely separate determinations: that client had had his 365 days cb-ESA (determination 1) and that he qualified for ir-ESA (determination 2).  Both those determinations are embodied in one supersession decision dated 7/3/13. 

In July 2014 the DM decided that determination 2 was wrong for mistake/ignorance of material fact, but it’s not possible to revise a determination, only an outcome decision.  So the DM had to revise the entire supersession decision dated 7/3/13.  A revision is not really an outcome decision in itself.  In fact, it’s effectively invisible.  What the revision does is allow you to replace an incorrect decision with a new one.  Here, the DM gets rid of the old supersession dated 7/3/13 and replaces it with a new one which still has to be dated 7/3/13 despite being made in July 2014.  The new decision is referred to as “the decision as revised” and, in this case, it is still a supersession decision because it still contains determination 1 above.  It also contains a new determination 2 as follows: that the claimant is not entitled to ir-ESA because they have too much capital.  Crucially, the time limit for requesting a MR of “the decision as revised” runs not from the 7/3 but from July 2014.  That’s the only relevance of July in the present case and at the appeal itself everything will turn on the facts at 7/3 not beyond. 

So do you see how fortunate your client is in a sense?  If the DWP had not made the mistake with his ir-ESA (for the sake of argument let’s assume it was a mistake although I know you’re disputing the capital issue as well), he would have been out of time in July 2014 to challenge the 7/3 decision to time-limit his cb-ESA.  But their mistake means the time limit starts to run again from July 2014 not just for the ir-ESA issue but for the cb time-limiting issue.  Hence he now has a tribunal which stands not only in the ir-ESA DM’s shoes but also the cb-ESA DM’s. 

Exactly the same principles apply about raising the correctness of determination 1 in your appeal as applied in the other linked thread.  In particular, how safe was his LCW status in March 2013?  If your tribunal decided that not only did he not qualify for the SG at that date but also, in its view, didn’t even have LCW that would jeopardise client’s chances of ever subsequently qualifying for cb-ESA through a new claim based on section 1B.  But if you’re confident client had LCW at March 2013 then you’ve nothing really to lose asking your current tribunal to consider whether client should have been in the SG in March.  If tribunal agrees then it simply replaces determination 1 with the following: client is, by 7 March, in the SG, his 365 days have not ceased and, therefore he remains entitled to cb-ESA from 7/3.

(ii) you make a new claim based on section 1B (I note what you say about not satisfying the contribution conditions so section 1B is client’s only way to get back on cb-ESA with a new claim)

3. I will raise the issue of SG from 7/3/2014 within the appeal - to be honest I didn’t think of that - was the clients failure to raise this at the time a barrier?

No. 

4. I have several options and have read your comments in the other thread. It seems there are few possibilities. What would you think is the best :-

a) try and press DWP to reinstate cb then do supercession

??? - see above.  N/a.

b) wait for the appeal and attempt to get SG from July at tribunal

An option but if successful at tribunal cb-ESA would be re-instated from March 2013, not July 2014 - see above.

c) do a supercession from today and expect DWP to bridge this claim with original [cb] claim

Not possible at present.  He cannot have cb-ESA re-instated without either a successful appeal or a new claim (options (i) and/or (ii) above).  Remember, don’t get distracted by credits.

d) put in a new claim

It’s an option.  But if you put in a new claim now before you appeal and you win the appeal you risk turning any re-instated cb-ESA into a fixed period award which potentially could expire the day before your new claim starts if client did not get into the SG in his new claim.  As with the linked thread, I’d be inclined to wait until the outcome of the appeal before making a new claim based on section 1B.

[ Edited: 21 Nov 2014 at 04:57 pm by Tom H ]
MNM
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Thank you for taking the time to respond so thoroughly.

I shall proceed with the appeal. I will seek Interlocutory Directions to request a Medical Panel Member to address Support Component question.

This should also act as my intention (disclosure) to deal with both income related matter and support component.

And in the meantime, prepare submissions for
1. Support Component from March 2013
2. Income related entitlement

Thanks again