EDP not paid. Backdate help please

I posted the attached in another thread last week. It’s a copy of some internal guidance which despite having been in existence since June last year, is yet to be reflected in the DMG. Hopefully a copy of it will do the trick. If they want to know where you got it from, the PO gave me a copy at the hearing.

Thanks Rosie.

Exactly what i was after. Saved it now!

Also check out chapter 45 of the DMG. Good luck!

Chapter 45 does indeed refer to this situation; however I had already put that in as part of the submission and it was completely ignored. I think others have found the same.

The guidance I was given at the hearing goes beyond what is in Chapter 45 in that it specifically directs decision makers to revise conversion decisions for official error in this situation. That is why I am disappointed Chapter 45 has not yet been updated to include that.

CE/4181/2013 recently bears on this
http://www.osscsc.gov.uk/Aspx/view.aspx?id=4349

para 12, ... it is not necessary to make separate claims for each of the contributory allowance and the income-related allowance. ... there is nothing in the legislation requiring separate claims for the contributory allowance and the income-related allowance.

13. As a matter of practice, a claimant is given an opportunity on a standard claim form to indicate whether he or she wishes to “claim” both allowances or only one of them.  That has obvious administrative advantages for the Department and it also has advantages for claimants – provided that they do not wrongly believe that they are not entitled to one or other of the allowances – because it avoids delay while contribution records are investigated or, probably more importantly, makes it unnecessary for a claimant to provide details of his or her financial position.  Nonetheless, despite the language usually used, an indication that one or other of the allowances is not “claimed” amounts to a waiver of the need for the Secretary of State to consider entitlement to that element of employment and support allowance, rather than amounting to a true failure to claim it.  The legislation does not actually contemplate there being a claim for only one element of the allowance.

para 25, ... the amount of employment and support allowance may include an amount attributable to the income-related allowance without a specific claim for that allowance having been made

I wait with bated breath for the ESA1 claim form to be amended, so as to remove its misleading warning:
“If you do not claim income-related Employment
and Support Allowance now, but then ask for it
at a later date, we may only pay it from that
later date”.

Nice one. That is going to be extremely useful. Thanks for sharing.

That decision will definitely help in this case but the judge goes on to highlight that if a claimant ticks the ‘contribution-based’ only box (say in a new claim) then they will need to have a valid route to revision or supersession or appeal if they want it looked at again to correct the error - at para 15 Judge Rowland says -

‘However, regard must be had to those other ways of altering a decision.  For instance, because a claim is not necessary in respect of each element of employment and support allowance, if a person says on a claim form that he or she wishes to “claim” only one element and a decision is made in respect of that element, it seems to me that it must be open to the claimant, if he or she thinks that it was a mistake not to ask for both elements to be considered, to raise the question of entitlement to the other element by way of an application for a revision under section 9 “on any ground” (see regulation 3(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991)) or subsequently if there is an appeal.  There are also other bases upon which an application for a revision may be made.  I accept that there was no relevant application for supersession made by the claimant that can assist her on the facts of this case, but the question arises as to whether there was a relevant revision or appeal.  This requires a legal analysis of the decision-making in this case.’

Full summary hopefully up on briefcase by end of today…

The previous thread is at http://www.rightsnet.org.uk/forums/viewthread/5928/

I am still getting cases like this.

Attempts to raise the matter with DWP in London have been met with bland indifference (Ministers are very busy you know….)

Let’s not drop this.

Summary of CE/4181/2013 now up -

http://www.rightsnet.org.uk/briefcase/summary/whether-separate-claims-are-needed-for-contributory-and-income-related-esa

think this decision extremely encouraging - we have all had clients losing out in this situation and my quick scan of the decision leads me to think we can get all their money back   Ruth

useful decision here - CE/277/2014 - which confirms the duty of the SoS to consider entitlement to income-related ESA in conversion decisions.

full decision here - http://www.osscsc.gov.uk/Aspx/view.aspx?id=4566

Represented by our very own Mike Hughes of Salford Welfare Rights - fab job Mike :)

Daphne - 10 July 2015 03:03 PM

useful decision here - CE/277/2014 - which confirms the duty of the SoS to consider entitlement to income-related ESA in conversion decisions.

full decision here - http://www.osscsc.gov.uk/Aspx/view.aspx?id=4566

Represented by our very own Mike Hughes of Salford Welfare Rights - fab job Mike :)

Hahaha. I was reading that decision thinking “that sounds remarkably familiar. Ohhhh!”.

It’s nothing new but it’s certainly an absolute restating of the correct position.