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No entitlement to ESA due to failing HRT?
I’m working on a case with an EU national who has an ESA claim which dates back to 2012 but hasn’t been paid anything since then. I think the lack of payments is due to him failing the HRT, but it has been very difficult to get a straight answer from the DWP. After chasing the LA for a reason as to why his HB was suspended, they eventually said it was due to a DWP decision that he had failed the HRT.
I asked for a MR of the ESA decision and tried to prove that the client has a permanent right to reside based on 5 years of legal residence. The DWP person I spoke to seemed a bit unclear about whether the MR request had been processed but did say he was recently placed in the WRA group for another two years. However, she also said that he was only going to receive NI credits (no payments) because his income was too high to receive payments.
So, a few questions arise from this which I hope you can shed some light on:
1. Does the fact that he has recently been confirmed in the WRA Group for another two years mean that the HRT is no longer an issue? Or is it possible that they have only got as far as reassessing his health and that this could all become irrelevant when they finish looking at the HRT issue? To me, the HRT issue and the health criteria of ESA are completely separate issues, but I’m not sure if the DWP would look at the two issues in a particular order, or would look at them in tandem and then if one of them is failed the answer is ‘No’.
2. I know he doesn’t have any other income or capital that would affect his ESA payments. Is it possible that the DWP system’s ‘income too high’ flag is because he is still classed as failing the HRT on their system and therefore has an applicable amount of zero? They are sending out an ESA3 form for us to update them on his income, but I don’t think he’s ever had enough income or capital to affect his benefits payments, so I’m not convinced that the flag on the DWP system has been triggered by actual income, past or present.
3. Have any of you challenged a refusal of ESA for HRT reasons? Did it take a long time for them to assess all the information? I submitted a lot of supporting evidence to try and prove that he had gained a permanent right to reside through 5 years of legal residence, but when I spoke to the DWP today they didn’t seem to know if there was an HRT issue with his claim. Very frustrating!
One thing that really stands out to me when working on cases like this is that not enough is done to prosecute employers who pay employees cash in hand. The people they employ are usually desperate for work and accept whatever they can get. But it is the employee who gets done over if they ever need to claim benefits such as ESA - because they don’t have a complete NI record or can’t prove that they were working.
Similarly employers who don’t pay NMW!
I have just had an EU refused ESA on appeal due to not satisfying R2R. The judge said the EU national had not proved completion of 12 months authorised work prior to an ESA claim made in 2011. Eu national is Polish. Work history was a number of employers since 2005. My client has never recd any benefit, luckily began living with a partner who claimed benefit for them both. i am trying to get Home Office to provide details of his records with them. The appeals were listed about four times and for various reasons were adjourned. Frustrating.
Are they married / in a civil partnership? And is there a chance s/he was actually self-employed before 2011? From 1 May 2011 it should only matter if you’re relying on facts which occured before that date (e.g. to establish permanent RTR). Even if s/he had completed 12 months authorised work before 1 May 2011, I’m not sure 12 months alone would necessarily help for a claim after that date, in and of itself.
1. Does the fact that he has recently been confirmed in the WRA Group for another two years mean that the HRT is no longer an issue? Or is it possible that they have only got as far as reassessing his health and that this could all become irrelevant when they finish looking at the HRT issue? To me, the HRT issue and the health criteria of ESA are completely separate issues, but I’m not sure if the DWP would look at the two issues in a particular order, or would look at them in tandem and then if one of them is failed the answer is ‘No’.
Have they possibly accepted he has a RTR from now on but when he originally claimed he didn’t quite have 5 years? On what basis are you arguing he has a permanent RTR? 5 year work history (bearing in mind you can establish a permanent RTR with only 2 years where you become permanently incapable of working).
It sounds very odd that they would put him in anything because that, surely, would be to accept the claim. I’ve never known them in other benefits to look at the substantive crtieria first and then decide RTR/HRT.
Perhaps that is promising then. Anyway, after the very vague answers from the DWP over the phone I decided to write to them and asked for some straight answers. Failing that: complaint then ICE. I just want a bloody decision so I can appeal if necessary!
He had NI contributions for four consecutive years, which I have HMRC docs to prove. He then became ill. I argued that he would either have gained a fifth year of legal residence from temporary inability to work or from a permanent inability to work - i found regs to support this but can’t remember them off the top of my head. I then sent in a supporting letter from a very well respected hospital consultant which said the claimant became permanently unable to work in the fifth year. I also sent in a tonne of payslips and rent statements to show he’s been living in the UK continuously.
My reference to employers paying cash in hand above was due to the fact that the client had worked for years before the ones that he paid NI in, but it’s difficult to prove when it’s cash in hand.
If it’s contributory ESA then there aren’t any RTR/habitual residence requirements. But if he’s not been in the support group, it sounds like he’s now passed the one year and is now claiming IR-ESA?
The Regs you are thinking of are the Immigration (European Economic Area) Regulations 2006 and in particular reg 15(1)(c) read with reg 5(3). There’s also a bit of caselaw on what consitutes permanent incapacity to work: Wadi Samin v City of Westminster [2012] EWCA Civ 1468. It’s whether there’s a reaslistic prospect of returning to work. Obviously, it’s difficult to argue for this and for retaining worker status on the basis of being temporarily ill but it definitely sounds like your client has a permanent RTR anyway.
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2. I know he doesn’t have any other income or capital that would affect his ESA payments. Is it possible that the DWP system’s ‘income too high’ flag is because he is still classed as failing the HRT on their system and therefore has an applicable amount of zero? They are sending out an ESA3 form for us to update them on his income, but I don’t think he’s ever had enough income or capital to affect his benefits payments, so I’m not convinced that the flag on the DWP system has been triggered by actual income, past or present.
When I had a client who tried to claim ESA she failed the HRT and while they were waiting for info from her they put her capital in as £16,000+. When she rung the call centre told her that her claim was fine and if she sent in bank statements then she would get some money.
Client was absolutely delighted and rung to tell me how wrong I was that she did not pass HRT.
But then of course she was refused again on the grounds that she failed the HRT. I spoke to a DM at the local office and they confirmed that they put in the high capital to stop a payout but clearly this is not communicated down to the call centre.
(Client was on JSA but hurt her back so her JC+ adviser recommended she claim ESA, client has severe mental health issues and did exactly what she was told. The client was never going to pass HRT but of course it got the client off the adviser’s ‘books’ and looked like a good result as the client has been on JSA for over 5 years. I persuaded client to reclaim JSA and they have linked the claims - if they hadn’t she would have come under new rules for JSA and I don’t think she will ever have GPoW)
Geep, may I suggest you raise a complaint with whatever your district complains team is? I don’t think you’re ever going to get to the bottom of the history unless you do (basis of complaint being maladministration). At the moment it really is impossible to be certain what the progress of events is (or what the best way forward will be).
Just wanted to update you all on this case, as the outcome was positive!
The DWP accepted the medical evidence that I submitted to show that the claimant was permanently unable to work. This was enough for him to meet the criteria for having a permanent right to reside. He has no been awarded IR-ESA and it has been backdated to 2012.
I just need to request for the SDP to be paid and backdated now. He’s already received a big payment for the backdating and should get more when the SDP is backdated.
Importantly, he also regains entitlement to HB.
It was a long slog but I’m relieved that there was a good outcome in the end :)