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Top Incapacity related benefits topic #4399

Subject: "IS v ESA" First topic | Last topic
theexpert
                              

Appeals Officer, Disability Solutions, Staffordshire
Member since
07th Oct 2009

IS v ESA
Wed 07-Oct-09 03:53 PM

Hi all,

This is my first post-please bear with me! Any help appreciated. Client in receipt of IS since March 07 on grounds of incapacity for work-was sending in Med3's. Had a baby in March 08 and told no need for sick notes any more (assumed changed category to lone parent). She was invited to interview at JCP in Oct 08 to discuss work possibilities. She told them of her health problems and they advised her to claim ESA instead.

They closed her IS and put in claim for ESA on same day (28/10/08!). Subsequently failed WCA in Feb 09. She appealed-Tribunal hearing 14/10/09.

I have argued with DWP that they were wrong in law to accept claim for ESA as per ESA (Transitional Provisions) Regulations 2008, Reg 3. They say as category changed to lone parent, she's not covered by this provision. I argued R(IS) 10/05 which states SofS obliged to consider if other prescibed categories apply before closing IS and directed them to DMG 45204, 45214 and DM Memo 30/09 but they still refuse to change decision and reinstate IS. They advise new claim for IS and request it be backdated on grounds of official error.

She also became entitled to DP after IS claim was closed so obviously I don't want her to miss out on that either.

Opinions please! Is it better to get a ruling from the Tribunal on whether they were wrong in law or simply go for new claim? GP now providing sicknotes again.

Thanks for any replies!

  

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Replies to this topic
RE: IS v ESA, darlocab, 07th Oct 2009, #1
RE: IS v ESA, theexpert, 07th Oct 2009, #2
      RE: IS v ESA, Jane80, 08th Oct 2009, #3
           RE: IS v ESA, theexpert, 08th Oct 2009, #4
                RE: IS v ESA, darlocab, 08th Oct 2009, #5
                RE: IS v ESA, Tony Bowman, 08th Oct 2009, #6
                     RE: IS v ESA, nevip, 08th Oct 2009, #7
                          RE: IS v ESA, theexpert, 08th Oct 2009, #8
                               RE: IS v ESA, nevip, 09th Oct 2009, #9
                                    RE: IS v ESA, Tony Bowman, 09th Oct 2009, #10
                                         RE: IS v ESA, theexpert, 09th Oct 2009, #11
                                              RE: IS v ESA, nevip, 09th Oct 2009, #12
                                                   RE: IS v ESA, Tony Bowman, 09th Oct 2009, #13
                                                        RE: IS v ESA, darlocab, 09th Oct 2009, #14
                                                             RE: IS v ESA, theexpert, 09th Oct 2009, #15
                                                                  RE: IS v ESA, darlocab, 09th Oct 2009, #16
                                                                       RE: IS v ESA, nevip, 09th Oct 2009, #17
                                                                            RE: IS v ESA, darlocab, 16th Oct 2009, #18
                                                                                 RE: IS v ESA, theexpert, 16th Oct 2009, #19
                                                                                      RE: IS v ESA, darlocab, 17th Oct 2009, #20
                                                                                           RE: IS v ESA, theexpert, 01st Nov 2009, #21
                                                                                                RE: IS v ESA, Tony Bowman, 04th Nov 2009, #22

darlocab
                              

welfare benefits, darlington citizens advice bureau
Member since
03rd Mar 2009

RE: IS v ESA
Wed 07-Oct-09 04:13 PM

Hi

What grounds did they have to stop her IS entitlement as a lone parent with such a young child, only the client can withdraw her IS claim to claim ESA but she should be advised of all the implications by DWP. She was covered by 2 catagories, the first one being incapable for work - so ESA should never have been awarded. Make official complaint - if you go for new claim of IS then if this is awarded following DMG 30/09 then this proves ESA decision wrong - therefore this decision should be changed and arrears issued now - Tribunal ruling would/should solve any pending/future decisions like this.

I have a similar case with tribunal hearing date pending.

IS stopped as child reached age 16 in March - DWP advised her to claim JSA or ESA if any health problems. ESA was awarded day after IS stopped.

Like yourself I have requested IS re-instated as ESA decision wrong in law, also against their own guidance and Sec of States duty etc - I also sent them copy of DMG Memo 30/09 and issued same to tribunal.

If they accept official error then IS claim should be re-opened without need for new claim and arrears issued.

Am awaiting their reply

  

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theexpert
                              

Appeals Officer, Disability Solutions, Staffordshire
Member since
07th Oct 2009

RE: IS v ESA
Wed 07-Oct-09 04:40 PM

Thanks for that, was beginning to wonder whether I'd missed something and got it all terribly wrong!

DWP say she automatically changed categories with birth of daughter and she relinquished IS when she claimed ESA. I argued she wasn't even aware she'd changed category, they had never informed her of that and therefore she cannot have relinquished award with knowledge of implications.

In any case, as she satisfies conditions as lone parent, DM cannot supersede and terminate entitlement to IS per R(IS) 10/05 and Memo 30/09 para 8.

Client happy to go to Tribunal for ruling, I'm concerned that since appeal is against finding of capability for work, will tribunal rule on legality of accepting ESA claim in first place?

Complaint already in and attached to submissions as no decision letter on refusal to reinstate IS has been issued, all done in telephone conversation. Formal written request for reinstatement has been made.

Thanks for response!

.

  

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Jane80
                              

Welfare Rights Officer, Notts County Council
Member since
27th Mar 2008

RE: IS v ESA
Thu 08-Oct-09 08:51 AM

I would appeal against the decision to supersede the Income Support award last October. This has worked for me in similar situations where people have been wrongly moved onto ESA. The appeal is late, but within the absolute 13 month limit, and the misadvise she got from the DWP is good reason for this lateness.

  

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theexpert
                              

Appeals Officer, Disability Solutions, Staffordshire
Member since
07th Oct 2009

RE: IS v ESA
Thu 08-Oct-09 02:39 PM

Thanks. The problem is that client had already appealed against ESA decision quite a while ago and it is now listed for next Wednesday. She could of course, withdraw from that appeal and issue a late appeal on the IS decision but in the mean time, she'd then be without any financial support.

Letter is now with DWP requesting immediate reinstatement of IS or written decsion not to so that we are then able to appeal that decision but I'm thinking in the shorter term it may just be quicker in this case to ask the tribunal to rule on legality of claim before hearing anything further on ESA appeal.

My feeling is tribunal may decline jusidiction on arguments re IS and adjourn until IS issue decided...I don't know though...I'm pretty new to this so I guess we'll see...I've prepared submissions re: IS arguments and in the alternative submissions re: incapabilty for work...would anyone have done anything differently?

  

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darlocab
                              

welfare benefits, darlington citizens advice bureau
Member since
03rd Mar 2009

RE: IS v ESA
Thu 08-Oct-09 03:02 PM

I would say that as you have requested re-instatement of IS then you should write to Tribunal Service with copy of your letter to DWP and state that as this is an appeal the Tribunal Service have jurisdiction to consider whether the ESA award was made in error and that IS should have remained in place.

The case as it stands now is whether the Sec of State was right to supersede ESA decision awarding entitlement following the ESA85 report - Therefore the Tribunal must consider whether the decision awarding ESA in the first place was right.

Its the same as my case

So let the Tribunal make the decision as DWP wont - Your case seems fine to me

  

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Tony Bowman
                              

Welfare Rights Advisor, Reading Community Welfare Rights Unit
Member since
25th Nov 2004

RE: IS v ESA
Thu 08-Oct-09 03:12 PM

I agree with previous contributors. However, I think I would be making more enquiries into the ending of the incapacity claim. If client was advised to stop sending in sicknotes and her incapacity for work claim was ended on the basis in favour of a lone-parent claim, then that is clearly maladministration. I think the new claim and transitional issues are red-herrings (though they serve as back-ups) and the real issue is get the client back to exactly the same position she was in prior to the birth of her child.

In the meantime I would be inclined to either continue with the ESA appeal if it is likely to be successful or to seek adjournment regardless of prospects (in order to secure ongoing payments).

If JC later accept that the previous IFW claim should continue, ESA will be revised and removed and payments will be offset against arrears due from income support.

Interesting choice of user name...

  

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nevip
                              

welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004

RE: IS v ESA
Thu 08-Oct-09 03:28 PM

First, there was absolutely no ground to supersede IS award decision so the supersession decision was unlawful as there was no lawful reason to take her out of entitlement. Second, the award of ESA is not lawful as the claim should have been treated as a claim for IS under reg 3(2) of The Employment and Support Allowance (Transitional Provisions) Regulations 2008 (as you say).

I would lodge a late appeal against the supersession decision quoting the above paragraph directly (or words to that effect) plus any embellishment you think appropriate. Your client should continue the ESA appeal to continue getting some money. The tribunal might have no direct jurisdiction over the IS decision (although it might wish to express a view) as a decision to accept a late appeal might not have been made by the time of the ESA tribunal.

But (if you raise the issue) the tribunal can give a ruling on the lawfulness of the ESA award decision (deciding that it was unlawful) thus sending a strong message back to the Department. However, if the tribunal decides that, then it could also decide that the WCA has no application to the claimant. This would put the Department in an arkward position as it would have to concede its error and supersede the ESA award decision and re-instate the IS or keep her on ESA with the possibility that the WCA could never be applied to her. That, of course would be legal nonsense.

  

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theexpert
                              

Appeals Officer, Disability Solutions, Staffordshire
Member since
07th Oct 2009

RE: IS v ESA
Thu 08-Oct-09 03:54 PM

I agree with all views! I have spoken to the tribunal service who say that any matter raised that has a direct or indirect bearing on the case will be considered.

If the tribunal on the day feels it can't reach a decision without further submissions they will either adjourn and invite further arguments or adjourn giving directions that the issue of legality re IS are to be determined first...same thing as remitting back to DM for reconsideration? With possibility of appeal on that reconsideration? Client will then still receive ESA assessment phase payments at least.

I guess I'm just second-guessing my reasons for taking it this way as opposed to a new claim and backdating due to official error/maladministration. It's certainly a policy issue...if DM's are not going to follow regulations and their own guidance, maybe a tribunal ruling will set the record straight once and for all.

Thanks for the responses...and the user name...now that would be telling!

  

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nevip
                              

welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004

RE: IS v ESA
Fri 09-Oct-09 08:16 AM

Actually, what the ESA tribunal can and should do is to decide that the ESA award decision is of no legal effect, treat the ESA claim as a claim for IS and award IS accordingly. Quite simple really.

  

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Tony Bowman
                              

Welfare Rights Advisor, Reading Community Welfare Rights Unit
Member since
25th Nov 2004

RE: IS v ESA
Fri 09-Oct-09 09:49 AM

Is it really that simple?

The main arguments identified appear to be either:
- that IS should not have been ended as client has a young child and should therefore have been superseded using the guidance in DMG 30/09; or
- that the IS claim based on IFW should not have been ended

In either of these cases I'm not sure that treating the ESA claim as one for IS is the correct approach. In the former case it would be OK (but not necessary) to do so but in the latter case it would not be the better option because this limits the period of incapacity for work and may reduce the arrears by way of lost disability premium.

  

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theexpert
                              

Appeals Officer, Disability Solutions, Staffordshire
Member since
07th Oct 2009

RE: IS v ESA
Fri 09-Oct-09 10:42 AM

Exactly the reason I didn't want to go for a new claim!

My feeling is that the ESA claim is unlawful and therefore of no legal affect. The original IS claim therefore stands and she is being paid the wrong amount. Hopefully the tribunal will reverse the decisions to close IS claim and to accept ESA claim and direct SofS to backdate all payments owed...I am arguing;

1) decision to close IS and accept ESA unlawful so strike out decisions and reinstate; or
2) adjourn til issue resolved on appeal specific to those decisions; or
3) if tribunal accepts ESA claim is lawful, client IFW and entitled to IS on that basis; or
4) if ESA claim lawful and linking rules do not apply, client LCfW per ESA regs

In the last 2 cases, I will also make application to appeal to Upper Tribunal on grounds first tier wrongly applied the law.

  

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nevip
                              

welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004

RE: IS v ESA
Fri 09-Oct-09 10:44 AM

For the purposes of the disability premium it matters not whether a tribunal re-instates the IS as I suggest or whether the original IS supersession decision is overturned. The result is still the same in that there will be a continuous award of IS from March 2007. However, the period of incapacity for work will still be broken between March 2008 and October 2008 because she stopped sending in sick notes.

Therefore, in either case the disability premium will only become payable from October 2009. Whatever happens the only way of changing that is if she can get a sick note to cover the intervening period which will allow the disability premium to become payable from March 2008.

  

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Tony Bowman
                              

Welfare Rights Advisor, Reading Community Welfare Rights Unit
Member since
25th Nov 2004

RE: IS v ESA
Fri 09-Oct-09 10:56 AM

I'm intrigued as to why the client was advised to stop sending sicknotes. Unless she said that she considered herself fit for work then I believe that advice to be maladministration since the procedure for the JC to stop IFW claims is via the PCA - not verbal advice - and I would pursue the case from that angle in the hope of getting DP arrears for the entire period. Could be a fruitless longshot but I think it worth investigating.

She will of course require a sicknote for the whole period and probably some other form of med evidence too.

  

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darlocab
                              

welfare benefits, darlington citizens advice bureau
Member since
03rd Mar 2009

RE: IS v ESA
Fri 09-Oct-09 11:29 AM

In both cases there was entitlement to IS that was stopped by DWP pushing ESA claims - there is no lawful reason/decision to end IS entitlement as per their own guidance and duty of Sec of state etc - it should be so simple to resolve - But DWP logic etc does not exist - poor training and understanding of regs and guidance does exist.

The decision awarding ESA was wrong and should not have been made - the ESA section and appeals section cannot see this even though they "say" they are aware of the DMG 30/09 guidance.

The Tribunal will have to look at the ESA awarding decision first - the DWP have been given every chance to get it right.

  

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theexpert
                              

Appeals Officer, Disability Solutions, Staffordshire
Member since
07th Oct 2009

RE: IS v ESA
Fri 09-Oct-09 11:38 AM

nevip: with regard to the DP, surely if the IS award is continuous it matters not in what capacity? DP is payable whether IS is payable on grounds of incapacity or lone parent etc...isn't it? In any case, she only became entitled from 06/10/08, just before they advised her to claim ESA. A med 5 would hardly be a problem but I don't see that it is necessary, she was entitled as a lone parent and as such has existing award and is excluded in law from claiming ESA...unless of course, she relinquishes it...which is what I anticipate DWP claiming...!

  

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darlocab
                              

welfare benefits, darlington citizens advice bureau
Member since
03rd Mar 2009

RE: IS v ESA
Fri 09-Oct-09 11:48 AM

To relinquish IS claim the claimant would have to have been informed by DWP of and understand the consequences - this would need to have been recorded on her file and I assume would need to be in writing - in the absence of - then DWP cannot claim relinquishment.

  

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nevip
                              

welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004

RE: IS v ESA
Fri 09-Oct-09 12:18 PM

Unless you get a qualifying benefit or are registered blind, etc, you cannot get a disability premium for any week that does not form part of a period of incapacity for work. So if her period of IFW ended in March 2008 because she stopped sending in sick notes then the DP stops.

However, (and this is the cause of all the problems) her period of IFW should not have stopped in March 2008 when she became a single parent and the advice to stop sending in sick notes was wrong. So to get the DP for the period March-October 2008 then it has to be a period of IFW. If she cannot get a sick note for that period then she should apply for an ex-gratia payment for maladministration.

  

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darlocab
                              

welfare benefits, darlington citizens advice bureau
Member since
03rd Mar 2009

RE: IS v ESA
Fri 16-Oct-09 12:11 PM

Could Theexpert give an update on the outcome of his appeal, held on wednesday.

Cheers

  

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theexpert
                              

Appeals Officer, Disability Solutions, Staffordshire
Member since
07th Oct 2009

RE: IS v ESA
Fri 16-Oct-09 08:30 PM

Sorry, meant to update earlier and forgot, very rude.

Ok, DWP did not forward any submissions, paperwork or anything else regarding the arguments I put forward concerning IS to the tribunal, they only addressed the ESA arguments re WCA. I received letter on Tues afternoon containing the following points:
-denied there was an 'existing award'
-stated client entitled to claim ESA and by doing so had relinquished her IS award
-after checking rules on relinquishment, cannot find any evidence client told of consequences
-FOR THIS REASON will re-open IS claim
-will need to contact client to 'update' information on current circumstances.

At actual hearing I put forward my IS arguments and submitted the letter from DWP. Tribunal said had I wanted to go ahead on ESA appeal alone, very good case but not what I was looking for. They said from letter, looked like I was going to get what I was asking for. Told them not so and explained DP issues and asked if they would rule on the legality of accepting claim for that reason. They said they couldn't but would adjourn, directed me to clarify with DWP whether IS reinstated including DP backdated.

If IS reinstated, ESA appeal will obviously lapse. If reinstated on grounds of relinquishment rules not being followed and does not include DP's, to appeal that separately and ask Birmingham to list it with him (sounded very positive).

DWP have clarified via phone calls that ESA closed due to 'new claim for IS'. IS state IS claim 'reopened' but noted as no payments to be issued until client supplies info requested.

Client has received an A2 form-IS review. No mention yet of when claim backdated to, on what grounds or whether it will include DP's.

My next move is to 1) write letter to DWP with step-by-step explanation of what happened, when and how things went wrong. 2) request immediate reinstatement including all DP's to March '08. 3) write official complaint re the handling of this whole claim/appeal 4) if I don't get what I want, appeal accordingly. 5) have a nervous breakdown!

Thanks for everyone's input on this, I'd totally missed the possibility of being entitled to DP's from March due to 12mths IFW as was fixed on the DLA claim being the qualifying benefit. It can get confusing as there are so many other issues involved eg: during the process of closing IS and claiming ESA, housing benefit lapsed resulting in 3weeks arrears which client is making payments on and HB also assessed her on ESA (C) so have not awarded her full entitlement when in fact she was on ESA(IR). I sometimes despair...so thanks everyone!

PS theexpert is a she!

  

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darlocab
                              

welfare benefits, darlington citizens advice bureau
Member since
03rd Mar 2009

RE: IS v ESA
Sat 17-Oct-09 10:58 AM

So sorry assuming you were a he - sorry.

Good result - long time coming, pity the tribunal would not rule on this.
Steps 1 - 4 i would follow follow as well - step 5 is always a consequence in dealing with DWP these days, I have a few.

Keep us updated on the complaint

  

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theexpert
                              

Appeals Officer, Disability Solutions, Staffordshire
Member since
07th Oct 2009

RE: IS v ESA
Sun 01-Nov-09 10:09 AM

*Update*
Hi all,

Client now received all IS arrears due from last date of claim including DP's. It turns out that she actually became entitled to the DP's even before her category of prescribed person was changed to that of lone parent, they just never paid her! They really do make me despair. They have now backdated the premiums to that date, which was February '08.

We are yet to receive any decision letters in relation to any of the above, think they don't want to have to acknowledge in writing the absolute farce this case has been so my official complaint is now in demanding full investigation, explanation, apology and compensation.

I really want it clarifying for the sake of others that when a person satisfies the conditions of another prescribed category, a claim for ESA CANNOT be accepted, it should not be treated as a claim for another benefit, it is simply not a claim at all due to existing entitlement.

However, from the client’s point of view, she's happy as Larry!

  

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Tony Bowman
                              

Welfare Rights Advisor, Reading Community Welfare Rights Unit
Member since
25th Nov 2004

RE: IS v ESA
Wed 04-Nov-09 09:57 AM

Good result!

  

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Top Incapacity related benefits topic #4399First topic | Last topic