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What to do while waiting for a mandatory recon?
Situation as follows; Cl was on IB migrated to ESA and failed the assessment. Didn’t ask for the MR right away but claimed CA/IS instead.
CA claim was withdrawn after he discovered that it had taken the SDP out of the cared-for persons Pension Credit. IS stopped when CA stopped and he is now claiming nothing at all.
He has also asked for an MR of the IB-ESA decision.
Instinctively I would see the CA/IS claim as the exact equivalent of the more usual JSA claim while an MR is going on and if the eventual ESA appeal succeeds the CA/IS payments would be offset against the ESA arrears but the more I think about it the less sure I get - I am concerned that a successful ESA appeal would only give arrears to the date of the CA claim and no ongoing entitlement.
I imagine that now his CA /IS has stopped and the MR is still pending he would have to claim JSA but if his original ESA claim (assuming a successful appeal) would only get him to the date of the CA claim and no further he might want to claim ESA again rather than JSA .
I think I may have ‘over thought’ this so any sensible advice would be gratefully received!!
I think your original premise is correct. If ESA appeal succeeds his (CB presumably) ESA is reinstated with arrears due offset against any CA/IS he received in the meantime.
As for what he claims now- I agree (JSA).
And, of course, the reason why IS and any JSA would be offset against the cb-ESA arrears is the fact that there is specific provision in Reg 3 D&A 1999 for IS and JSA to be revised in these circs. The client could go on cb-ESA pending appeal once appeal lodged so JSA might only be for a few weeks as you suggest. The CA would overlap so would also be offset against any ESA arrears. The fact CA starts only after the migration decision may raise issues about when any ir-ESA, if applicable, could commence to accommodate a CP, especially if the result of the ESA appeal is such that he only qualified for cb-ESA on migration, eg if tribunal put him in Wrag not SG.
Can’t he claim basic IS (i.e. the personal allowance only without the Carer Premium) without claiming Carers Allowance? I’m sure this is an argument I’ve had and eventually won with DWP in the past. That would avoid stopping the SDP for the cared for person but also get him out having to claim Jobseekers Allowance and mess around with this 13 week temporary illness fudge that they seem to be using at the moment whilst people wait for the MR/appeal to be acknowledged.
As a follow on from Tom H’s point, if the appeal was successful the CBESA would overlap with any CA and so the cared for person could continue to get SDP and the client an IR Carer Premium added to their ESA (this may have been the point he was implicitly making!).
Can’t he claim basic IS (i.e. the personal allowance only without the Carer Premium) without claiming Carers Allowance? I’m sure this is an argument I’ve had and eventually won with DWP in the past. That would avoid stopping the SDP for the cared for person but also get him out having to claim Jobseekers Allowance and mess around with this 13 week temporary illness fudge that they seem to be using at the moment whilst people wait for the MR/appeal to be acknowledged.
As a follow on from Tom H’s point, if the appeal was successful the CBESA would overlap with any CA and so the cared for person could continue to get SDP and the client an IR Carer Premium added to their ESA (this may have been the point he was implicitly making!).
Absolutely right Sam but shouldn’t need to argue with DWP about this, although we know that claimants frequently told by DWP that can only get IS as carer if also getting CA. Worth directing DWP to para 20116 onwards of DMG on this if they have any doubts. In this case might want to see if can get decision to end IS revised and/or make a new backdated claim for IS as a carer (download form if need be to avoid any call centre gatekeeping)
Good point Sam! Missed that (which just goes to show how a fresh pair of eyes can make such a difference in Welf World!)
this 13 week temporary illness fudge..
That is a far better name for it than an extended period of sickness. Lol. In fact, going to start calling it a Tif from now on.
Re the CP in ir-ESA. I was thinking of the following situation:
(I) Migration decision dated 1 Feb 2016 refusing to convert C’s IB only award of £105.35 p/w to ESA
(2) C awarded CA (£62.10) from 8 Feb 2016 with a top-up of IS (£45.60)
.
(3) C MR/appeals the decision in (1). For convenience, he chooses to stay on IS/CA.
(4) Tribunal allows his appeal and converts him to contributory ESA only of £105.35 (made up of £73.10 + £29.05 WRAC + £3.20 contributory Transitional Addition). Starts receiving this ESA on 1 Dec 2016.
(5) He is due ESA arrears of £105.35p/w for the period 1 Feb 2016 (we’ll assume that’s the effective date of migration) to 30 November 2016 (a period of approx 43 wks). 105.35 x 43 = £4530.05.
(6) But the CA would be offset against the arrears in (5). Period of offset would be: 8 Feb - 30 Nov, ie 42 weeks. So £62.10 x 42 = £2608.20
(7) The IS also falls to be offset against (5). So £45.60 x 42 = 1915.20.
(8) The total offset is, therefore: £4523.40 ,ie (6) + (7).
(9) So all C stands to gain in ESA arrears is £6.65 ie, (5) - (8).
(10) However, the question that must then arise is whether C can qualify for ir-ESA from 8 Feb 2016 as that is the date in (2) from which he has had, following the revision of the CA, an underlying entitlement only to CA. Problem is whilst the SSWP may have been under a duty to check his entitlement to both ir-ESA and contributory ESA as at 1 Feb 2016 (ie the effective date of conversion from IB to ESA), that duty doesn’t extend to 8 Feb. If C had qualified for ir-ESA he could have been due extra arrears of the CP. So, £34.60 x 42 = £1453.20. When I raised this in my last post, I’d overlooked the effect of Regs 6(2)(e) and 7(7) D&A 1999. All C would have to do following his above tribunal win is apply for a supersession under those provisions and he’ll get the extra £1453.20 above. There’s no time limit on making that supersession either. But what’s the betting the DWP would just pay him the £6.65 arrears above and probably not even pay him a CP in his current ESA (from 1 Dec 2016 above) unless C makes that supersession request (rather than DWP using its own initiative and sending him an ESA3)?
[ Edited: 17 Nov 2016 at 11:56 am by Tom H ]