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

Who checks the contribution records?

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Patrick Joseph Hill
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Trafford Benefits Advice Service

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Hello everyone,

Client claimed ESA and was awarded Income Based.  There is a long and complex story of an alleged recoverable overpayment but that is an aside in regard to this question.  The DWP accepted that the 1st contribution condition was met during one of the relevant contribution years as was proved by the claimant presenting a P60 for that year.  Unfortunately, the claimant was unable to provide a P60 for the other relevant year and consequently Contributory ESA was denied for failure to satisfy the 2nd condition.  It now transpires that the Lower Earnings Limit was reached for the requisite amount in the other contribution year and, therefore, ESA(C) should have been awarded.  The appeal is to be heard next week and of course the argument is that there is no recoverable overpayment as there are no capital limits for the ESA(C) that should have been awarded. 

The question is, and I think I know the answer, should the DWP have sought the contribution history for the relevant year if the claimant was unable to provide the P60?  I think that the DWP should have; but I am happy to be told otherwise if that be the case.

Thank you in advance.

Patrick.

Mick Quinn
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Welfare rights officer - Northumberland County Council

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According to our BDC contacts they have access to the contribution history held at HMRC (National Insurance Contributions Office) based in Newcastle.

Their number is 0300 200 3500 and should confirm that DWP have access to NI records

Patrick Joseph Hill
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Thank you for this.  I’ll check the number as per your suggestion.  However, although the DWP may have access to the NI records, are they obliged to seek the information in pursance of a claim if the claimant isn’t able to provide evidence themselves?

Thank you again.

Patrick

Edmund Shepherd
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Tenancy Income, Royal Borough of Greenwich, London

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JCP should routinely check for a NI record when someone claims ESA. You can ask for copies of the conts for the relevant years electronically or in writing (or phone, but people have had difficulty with this in the past).

If someone doesn’t qualify looks like they should because they’ve worked in the relevant years or got an appropriate benefit, I usually make a request for the records in the first instance and ask the claimant to collate payslips/P60s .

Jon (CANY)
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Sounds like the principles established in Kerr v Department for Social Development should apply?

15.  In this situation there is no formal burden of proof on either side. The process is essentially a fact-gathering exercise, conducted largely if not entirely on paper, to which both the claimant and the department must contribute. The claimant must answer such questions as the department may choose to put to him honestly and to the best of his ability. The department must then make such inquiries as it can to supplement the information which the claimant has given to it. The matter is then in the hands of the adjudicator. All being well, the issue of entitlement will be resolved without difficulty.

  16.  But there some basic principles which made be used to guide the decision where the information falls short of what is needed for a clear decision to be made one way or the other:

  (1)  Facts which may reasonably be supposed to be within the claimant’s own knowledge are for the claimant to supply at each stage in the inquiry.

  (2)  But the claimant must be given a reasonable opportunity to supply them. Knowledge as to the information that is needed to deal with his claim lies with the department, not with him.

  (3)  So it is for the department to ask the relevant questions. The claimant is not to be faulted if the relevant questions to show whether or not the claim is excluded by the Regulations were not asked.

  (4)  The general rule is that it is for the party who alleges an affirmative to make good his allegation. It is also a general rule that he who desires to take advantage of an exception must bring himself within the provisions of the exception. As Lord Wilberforce observed, exceptions are to be set up by those who rely on them: Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107, 130.

JoW
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I’ve never know it to be up to the claimant to prove they have met contribution conditions. The DWP check routinely when someone claims ESA or JSA.

Patrick Joseph Hill
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The appeal was adjourned with directions.  Since the adjournment the Dispute Resolution Team (DRT) telephoned me and said that they doubted that the claimant would satisfy the contribution conditions in both the relevant years.  When I explained that the two conditions were different and that one of them was less demanding of contributions etc. than the other, the person from the DRT said “oh, I’ll pass it onto the experts and let them sort it out.”

Oh dear!

Thank you.

Patrick.

Claire Hodgson
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dear me

DWP should of course check this themselves.

however, your client can get that info himself if he wants, from Longbenton.

people get it themselves when they want, for example, to check whether they have enough for a pension, so a client asking for it should result in the info being sent to him.

Patrick Joseph Hill
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Claire Hodgson - 18 December 2014 02:49 PM

dear me

DWP should of course check this themselves.

however, your client can get that info himself if he wants, from Longbenton.

people get it themselves when they want, for example, to check whether they have enough for a pension, so a client asking for it should result in the info being sent to him.

Yes, you’re right of course.  In this case, however, I was able to look at bank statements that identified monthly salary payments and she was well in excess of that year’s multiple lower earnings limit and easily fell within the that year’s contribution conditions.

So it’s fingers crossed and season’s greeting to one and all.

Thank you.

Patrick.

benefitsadviser
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Ive never had a single Contribution based ESA claim refused because the claimant hasnt been able to supply P60s etc. The DWP always check themselves in my experience??

Patrick Joseph Hill
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benefitsadviser - 18 December 2014 03:29 PM

Ive never had a single Contribution based ESA claim refused because the claimant hasnt been able to supply P60s etc. The DWP always check themselves in my experience??

Neither have I.  However, I wasn’t involved at the beginning of this claim as I was only approached to help with a significant overpayment of benefit.  It was only during my initial interview with my client that it struck me that I could see no reason why she wasn’t on ESA(C).  She had been in work throughout the relevant period and, as far as I could see, her earnings indicated satisfaction of the contribution conditions.  I wrote seeking an MR giving this as one of the reasons.  The suggestion was denied so we progressed to an appeal hearing which is described earlier.  So it would appear that someone, somewhere wasn’t entirely conversant with the contributions conditions for ESA(C), or maybe they were and it was an oversight.  Whatever the reason, we ended up with the scenario we now find ourselves in.  These things happen and it’ll probably end up okay.  But what if no one had identified the possibilities of the mistake?  Perhaps one might suggest that this is a small reason among many others for the argument of the need for a robust and well funded welfare rights provision across the land.

Thank you.

Patrick.

1964
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It wouldn’t be the first time in my experience. I had a client quite recently who should have qualified for CB ESA (on basis of having been a carer- receiving CA/credits- after working full time for many years). DWP was adamant she didn’t meet the contribution conditions when she clearly did. I requested MR quoting the relevant regs but client received a phone call from a DM who talked (bullied?) her into withdrawing the MR on the basis I didn’t know what I was talking about. Sadly, I was unable to persuade the client to allow me to do anything about it.

So they’re far from fallible when it comes to understanding the contribution conditions.

Tom H
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Patrick Joseph Hill - 18 December 2014 04:17 PM

..It was only during my initial interview with my client that it struck me that I could see no reason why she wasn’t on ESA(C).  She had been in work throughout the relevant period and, as far as I could see, her earnings indicated satisfaction of the contribution conditions.  I wrote seeking an MR giving this as one of the reasons.  The suggestion was denied so we progressed to an appeal hearing..

Have to say it’s unusual for them to get a decision on the 2nd contribution condition wrong.  I’ve known them get the 1st contrib condition wrong but, even then, only in cases like 1964’s which are non-standard.

The issue seems to have moved on from who is responsible for checking her earnings record now that she has produced that evidence herself from payslips.  It’s “the suggestion was denied” bit above from your earlier post which suggests the Dept dispute that her earnings satisfy the 2nd contrib condition. 

 

Edmund Shepherd
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I can only assume that DWP has checked the record and it’s been inadequate. The usual next best thing to do is get P60s. Failing that, wage slips. Bank statements are a bit iffy in my view, because all it shows is a number.

If you still lack a second P60 and there are no pay slips, can copies of these be obtained from the employer?

If the only issue now is the donkey work, it’s up to the tribunal to decide it.

What was the tribunal direction?

Patrick Joseph Hill
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Directions were:

1]  The respondent seeks an overpayment of £ (*five figures).  At the next hearing a Presenting Officer is ordered to attend.
2]  The respondent shall provide a further submission within 28 days.  That submission shall address paragraphs 1 to 3 of the submission provided by the representative [me].
3]  The respondent shall provide a provide a schedule of telephone calls between **/**/** and **/**/**.  This schedule will attach as an appendix all screen shots and notes made in respect of these telephone calls.  The schedule and the appendix to the schedule shall also be produced within 28 days.
3]  The respondent is reminded of its positive duty to assist the Tribunal and is also reminded of the Tribunal’s power to debar a party from the proceedings where there has been non compliance with the directions. (Pretty strong stuff or what?!)
[5]  Reserve to this judge allowing 3 slots.

My submission at paragraphs 1 to 3 were: 

-  That the Secretary of State had not discharged their duties under Subsection 5A to Section 71 of the Social Security (Administration) Act so any alleged overpayment stands not to be recoverable, and;
-  That the appellant was paid benefit incorrectly as she should have been paid ESA(C).  Had the correct benefit been paid it would not have been subject to any capital rules and no overpayment would have occurred:  This, of course, is the main thrust of this thread.

Thank you.

Patrick

Ruth_T
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The fact that an employee has paid NI contributions does not guarantee that these have been paid over by the employer.  Employers pay the NI they have collected at the end of a tax year, and mistakes are sometimes made.  I have personal experience of non-transfer of contributions after leaving a job during the tax year, during which the employer was also taken over.  Several former employees were in the same position, and the error only came to light when one of them claimed a contributory benefit.

However, the DWP should accept that the relevant contributions were paid by the employee on the basis of wage slips, P60 or P45.