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HB O/P following successful ESA appeal
My client was in receipt of Incap Ben until 2012 when he was moved onto ESA with the support componant. He was then found fir for work, claimed IB JSA and was then successful with an ESA appeal and placed in the WRAG - this is a conts ESA award. This has lead to a HB O/P - for the period he was on IB JSA. He has never had to pay rent before because of his previous awards.
Revenues are telling me they think there is nothing they can do. I think it’s deeply unfair and argue that the client could not have known that he would have a rental liability if he was successful with his ESA appeal.
I can’t find anything to help overtuen the O/P decision.
Can anyone help me out or is this a wild goose chase?
I’m not sure how this could have produced an overpayment, if he previously was getting full benefit while on ESA. Does he have other income / savings?
Does his ESA contain any transitional addition, and if so have Housing Benefit also allowed a transitional addition?
If he was in receipt of ibJSA then he was passported to HB. Have JCP issued a JSA o/p decision?
I think you need a statement of reasons. I also have difficulty seeing how a HB OP can have arisen here. The claimant would either have been passported or had an applicable amount balancing out his ESA income.
He does have a transtional addition to his ESA taking him over his applicable amount for ESA and so he has a rent charge going forward of £5 per week. Having won his tribunal, the ESA decision has superseeded the decision based on IB JSA therefore creating a HB O/P for this period of £5 per week.
He previosly got full HB because he was in the support group and so had a EDP.
Does this make sense…...
Yes it does. I’ve had several clients in exactly the same position and I can’t find a way around it (however unfair it seems). The only time I’ve known clients not to end up with an HB overpayment is where the LA concerned hasn’t clocked that the award was CB rather than IR (and has therefore treated the arrears as capital and disregarded it erroneously).
If a transitional addition was awarded because of a move from IB to ESA(C) then a transitional addition should have been added to the HB applicable amount to balance it out and ensure that the protection of the person’s previous income was not undermined by a cut in HB.
How far back does the WRAG decision go - is it all the way back to when he came off IB?
I think I understand what has happened now, but I don’t have a solution.
A transitional amount is added to Housing Benefit if the applicble amount for ESA is less than the person’s applicable amount when they were on IB i.e. it protects them against the loss of the disability premium.
In this case the person moved from IB to the support group, and his applicable amount for HB would actually have gone up once the enhanced disability premium was added.
Unfortunately I think that the only opportunity to aquire the transitional amount in HB is during the migration. He can’t be given it now, because its not protection from the move from IB to ESA.
By the way, should he have had a top up of income-related ESA for the period he was in the support group?
He did get an IR top up of ESA while in the support group after his initial migration - this is what kept him on full HB when he moved from IB to ESA.
The legislation around this is tortuous to say the least. The HB transitional addition ultimately depends on the ESA TA arising from a “conversion decision” for the purpose of Reg 5 of SI 2010/1907, which I think this would be if the effective date of all these decisions remains the original conversion date. Is that the case?
Is this the sequence of events:
- ESA(ir) with support component originally awarded; no HB TA required as the claimant was on income-related ESA (whether he had an ESA TA doesn’t matter for HB purposes)
- decision revised and claimant in fact not entitled to ESA on conversion
- claimant appeals, but also claims JSA(ib) in the meantime
- none of this has any effect on HB as it’s all income-related DWP benefits
- ESA reinstated on appeal, WRAG plus TA with effect from original conversion date
If that is what happened, hasn’t the Tribunal substituted a Reg 5 conversion decision, which in turn means the claimant is entitled to the HB TA?
Alternatively, if there is an HB o/p it is arguable that it was caused by DWP official error. There is conflicting case law on this: CH/943/2003 says that a successful appeal means the original decision was an official error by operation of law - it doesn’t matter what the substantive reasons for the success were; whereas CH/0038/2008 says you have to look at the reasons why the appeal succeeded - did the claimant provide evidence to the Tribunal that wasn’t available to the original DM, was it just a difference of opinion about the same facts etc. So it’s worth an appeal arguing that the earlier dcision is the right one, and the only workable one in practice because the Council is unlikely to be in a position to get its hands on the information required to apply the approach suggested in CH/38/2008
And as if by magic, a decision appears resolving that very conflict:
http://www.osscsc.gov.uk/Aspx/view.aspx?id=4493
And it is an ESA conversion case! Hooray!
And the claimant won - 943/2003 preferred. Double hooray!
Only issue is whether the claimant contribuited to the error by not providing evidence reasonably required of him at the original decision making stage.
Nice one HB Anorak! Going to be dead useful is that.
Is this the sequence of events:
- ESA(ir) with support component originally awarded; no HB TA required as the claimant was on income-related ESA (whether he had an ESA TA doesn’t matter for HB purposes)
- decision revised and claimant in fact not entitled to ESA on conversion
- claimant appeals, but also claims JSA(ib) in the meantime
- none of this has any effect on HB as it’s all income-related DWP benefits
- ESA reinstated on appeal, WRAG plus TA with effect from original conversion date
I read it as:
- ESA with support component awarded on conversion
- time goes by
- a subsequent medical assessment decided client was fit for work, the ESA award was superceded
- client claims JSA during mandatory reconsideration period
- client appeals, appeal is successful and he is placed in the WRAG. His contributory ESA including TA is backdated to supercession decision date.
Yes, that makes sense.
Cheers HB anorak
I will put together an appeal using the info you have put down here.
I can confirm sequence was IB - ESA with support (Conversion decision, new medical and found fit, subsequent appeal places in WRAG.
If I read you correctly, the TA in the HB should remain in place as he has now remained on ESA?