DWP pressure not to appeal!

I have a case that is very strange and I urgently need some advice.

My client had been on Incapacity benefit as he has parkinsonism. On making a claim for IB he didn’t include his wife’s details as she works, so no dependent payment would have been appropriate.

He was migrated to ESA, and in December 2011 was placed into the WRAG group. This of course ended in December 2012. However, my client was moved across to the income based ESA without being told. He was awarded a pensioner premium in reflection of his age.

This continued until September 2013 when he was called in for a compliance interview. It was discovered that he had a partner and a private pension. However because the DWP accepted that he had never applied for the means tested benefit, and the letters do not explicitly indicate that the award was means tested, that it was their error. They did of course cease the claim. However he continued receiving benefit award letters until October 2013 (although no money was actually paid)

I met with client in June 2014 and looking at the paper work, I felt that if he had been expressly told that he wasn’t entitled to contribution based ESA from December 2012 he could have appealed for the support component and carried it on. However since the claim continued until Spetember 2013 I was in time for a late appeal.

The DWP have contacted me stating that we should withdraw the appeal and client should apply for ESA afresh. After the assessment phase, if he is found to be in the Support Group he will receive full payment. I explained that this isn’t possible as he cant get contribution based benefit now and he couldn’t get means tested ESA. DWP decision maker said “ESA Support Group works like DLA, its not means tested”. I have never heard of this and cant see it somehow. Three times I have been called by the decision maker urging me to cancel the appeal and claim afresh.

I really don’t know what to do for the best now. Do I carry on with an appeal? Do I claim afresh? Or should I do a mix of the two. Please advise me as I am completely lost!

Normally a claimant would continue on a credits only claim once the cb ran out , do you know why that didn’t happen? You said he was receiving a pensioner premium.  How old is he?

On further thought you can’t claim ESA over pension age…is his wife pension age (hence pensioner premium) in which case have you done a QBC to see if they are better off on PC anyway and forget all about ESA?!

Not sure who is making decisions these days (the cleaner perhaps?) If client makes a new claim he would not be eligible for cb ESA anyway as he will not have paid sufficient contributions in relevant years. Unless two claims are linked (less than 12 weeks) in which case they will go back to the years used to make decision on his original IB claim.

However if he has been getting credits i.e. treated as having LCW then you could either appeal original decision to put him in WRAG or ask for a supersession of his current claim although that wouldn’t be backdated.

I’ve partially removed my original response as it may have confused you more.

There’s nothing stopping you making a new claim for CESA now whilst waiting for the tribunal.  One of the basic conditions of ESA found in section 1(3) WRA 2007 is that you are not of pensionable age.  You don’t have to be of pensionable age, however, to qualify for a pensioner premium which is awarded if you or your partner have reached pension credit qualifying age (para 5 of Sch4 to the ESA Regs).  So there’s no inconsistency between claiming ESA and having a pensioner premium. Chances are if he doesn’t qualify for IRESA with a pensioner premium included then he may not qualify for PC.  But we are, of course, concerned here with CESA for which the pensioner premium is irrelevant.

If he re-claims ESA now and is put into the support group that would, on the facts, result in his CESA re-starting.  That’s because of section 1B WRA 2007 whose conditions he appears to meet.  For example, the Dept would have continued to treat him as having LCW between Dec 2012 and the present.  If he has claimed JSA since his ESA stopped then he wouldn’t qualify under section 1B.

The DM is wrong to suggest that the CESA would start after the end of the new claim’s assessment phase, ie wk14.  The CESA would start from day 8 (ie, excluding the 7 waiting days) of his new claim.  That is by virtue of Reg 7(1)(d) ESA Regs which does not require the assessment phase to have ended before the Support Component and, it follows, CESA can be awarded.  Although, obviously, he isn’t going to get paid at all until he passes the WCA and is put into the SG on that new claim which could take months.  But if that happens then he’d get arrears from day 8.

Don’t get side tracked by talk of credits keeping open his ESA claim.  It’s actually the opposite in time-limiting cases: he’s awarded credits under the Credits Regs precisely because his ESA has come to an end (it never ceases to amaze me how experienced advisers get that wrong).

In order to win your current appeal you’d need to show that on the date of the decision to time-limit his CESA he would have qualified for the SG. 

It’s probably best to wait until the outcome of his appeal before making a new claim.  If the tribunal refuse to put him in the SG then he can always make a new claim at that point (but see warning below).  As stated above, he’d need to get in the SG re that new claim in order for CESA to re-start.  But if he won his current appeal then he’d be back on CESA from Dec 2012 so there’d be no need for a new claim.  The benefit of going ahead with the appeal is that he’d get arrears of ESA back to Dec 2012 with, of course, an offset of the IRESA he erroneously received between Dec 2012 and Sept 2013.

Warning: the tribunal is not restricted to looking at whether he should have been in the SG at the date of his time-limiting decision.  It could look at whether he had limited capability for work at that date also (even if the DWP don’t dispute that he did).  Not saying the tribunal will do that of course.  But if it did and decided that he didn’t have LCW then it would stop him making a subsequent successful new CESA claim under section 1B above.  That’s because he’d no longer satisfy the first condition of that section if found by the tribunal not to have LCW.  Something to think about if his condition has worsened since Dec 2012 to such an extent that he has a better chance of getting into the SG now compared to then.  It all depends on whether you feel he had a reasonable chance of qualifying for the SG in Dec 2012 and on how “safe” his LCW status was at that date also.

I had originally felt that the tribunal had no jurisdiction to hear your appeal but changed my mind.  Should the tribunal say that they can only look at the facts at the date of the decision under appeal, ie Sept 2013, and cannot, therefore, consider the SG position at Dec 2012, I’d point out that the Sept 2013 decision can be nothing other than a revision of the Dec 2012 decision.  The law states that you cannot supersede a decision where it can be revised and, here, the Dec decision has to be revised for ignorance/mistake of the material fact that his income was too high to qualify for IRESA.  Consequently, tribunal must look at events in Dec 2012 - section 9(3) SSA98 and para 53 of R(IB)2/04.  Your 13 months to appeal rightly ran from Sept 2013, however, due to section 9(5) SSA 98.

I wonder whether client had a medical at the point of his conversion from IB to ESA.  If not then it is arguably more difficult for the DM to defend the time-limiting decision, ie to successfully contend that client was rightly in the WRAG when time-limited.  I’m not saying client would definitely win in those circs of course as the tribunal is free to make a WCA including which component to award without a medical.  But it might explain why a DM would rather you withdraw than have to do a submission.  Have they filed a submission yet?

Nobody going to mention that there would be strong grounds for a complaint against the DWP decision maker in this instance.

Imagine if making three calls to a claimant to persuade them to withdraw their appeal had been what took place. How would we feel about it then? If a DM thinks this is appropriate with a rep. then why would they not be that same person with appellants? Needs knocking on the head with a formal complaint asap.

The DWP choices when an appeal is lodged are confined to determining that it’s not a validly made appeal; making a submission suggesting the appeal should be lapsed because they have made a more favourable decision or cracking on with it and putting together a submission and letting an appeal tribunal decide. Ringing up and attempting to be “persuasive” is dangerous territory; potentially maladministration or worse and compounded by the fact that in this instance it was based on wrong advice.

Thanks everyone for your replies.

I have never come across such a mess before.

Client is over PC age but his wife wants to continue her work which takes them out of PC scope. The only option is to get ESA Support Component based on contributions back into payment.

The pensioner premiums applied when the claim became income based were all down to the DWP making an assumption that he was a lone claimant.

I am inclined to raise a complaint about the DM trying to get me to cease an appeal, but I think I will get the appeal out of the way first. Thank you all so much for your assistance here, I feel much, much more confident about what I am doing now

Its down to language as well in some cases.

Many of my clients who have had JSA sanctions have been told by their adviser"You arent allowed to just appeal any more, and you are wasting your time anyway as you wont win”

Technically they are correct : you cant “just” appeal any more, you need to ask for a Mandatory reconsideration first (but of course those lovely chaps and chappesses at the jobcentre neglect to mention this).

Since when did frontline staff become trained decision makers regarding people wasting time??

the cynic in me thinks could they have “lost” the papers hence the attempt to put you off the appeal?

also, does the client have the option of 6 months jsa?  off the top of my head here but if i remember right the client would be allowed to use his past tax years (prior to hus IB claim) if claiming after a period of LCW?