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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

ESA claim backdating

MLloyd
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Leonard Cheshire Disability

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Total Posts: 8

Joined: 28 August 2014

Hi all

Probably a relatively simple question, sorry! Just feeling unsure this morning!

I’ve got a client who’s been entitled to CB-ESA for around 2 years, but her employer failed to provide her with SSP1 after stopping paying her, so she had no idea about ESA or claiming. She’s still employed by them, so didn’t think she’d be entitled to any benefits by way of getting dismissed or leaving work. I know there’s no provision for backdating ESA more than 3 months, but I’m wondering about her trying to take any action against the employer - it’s not my area so I’d refer on anyway, but I’m thinking the question that will come up is whether her employer actually have a responsibility to tell her about ESA? It’s a large bank, with an HR department, but it’s still a bit of a stretch. Any ideas?

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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Joined: 16 June 2010

See regulation 15 of the SSP Regs (below).

The law on remedies for breaches of statutory duty is complex.  The law in this area has largely developed in public law (acts or omissions by public authorities, i.e. local authorities or government departments) and the courts have been reluctant to found causes of action unless the relevant statute expressly provides one.  Whether breaches of statutory duty are more readily actionable in private law is something you will need to get proper legal advice about.  Finally, there is the possibility of bringing a claim for negligence at common law if you can establish that a duty of care exists.  Again, seek proper legal advice.

http://lawvolumes.dwp.gov.uk/docs/a4-6801.pdf

 

MLloyd
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Leonard Cheshire Disability

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Total Posts: 8

Joined: 28 August 2014

That’s great, nevip, thanks. I’ve signposted her on to relevant legal/employment advice, but I’ll pass on the pdf and then she’ll know what to point them at!
Cheers 😊