Forum Home → Discussion → Work capability issues and ESA → Thread
How did someone apply for ESA in 2012 - and was it different for IR ESA and CB ESA?
I have a client Mr A, who has been on ESA since 2012. DWP claim he has been on income related ESA and has overclaimed ESA to the tune of £22K because Mrs A has been working 2 or 3 part-time and sometimes seasonal jobs. His ESA has been withdrawn and they are now on UC and better off. They have no housing costs so Mrs A gets the higher work allowance plus carer premium as an underlying entitlement.
Mr A has been interviewed under caution and has got a copy of the trancript. DWP haven’t produced a copy of his original application because they say it has been archived but assert he made a joint claim. I had always understood that you simply applied for ESA and DWP checked whether you were entitled to CB ESA. Mr A does not remember how he ended up on ESA, he says he was on SSP because of a series of mental crisis and then was let go by his employer. He has not worked since and is unlikely ever to do so again. He is 52.
I would have assumed he would be on CB ESA as he had been receiving SSP after being in full-time employment, and indeed he was receiving the single person allowance plus the support group up until his claim was suspended. He was awarded PIP in 2017 but no premiums have been added. All of this is consistent with him being on CB ESA.
There is a throw-away remark in one of the decision letters saying he didn’t pay enough contributions in 2010/11 but that seems unlikely. I have asked Mr A to check his personal tax account.
It looks to me as if DWP have been paying him the CB rate of ESA but have suddenly decided he should have been on IR ESA and has therefore been overpaid which is bizarre.
Has anyone any thoughts about how to start on this?
The issue is not whether he claimed generic ESA including income-related (which as a matter of law he did - there is only one benefit called ESA), but whether he misrepresented or failed to disclose material facts. It sounds as if he did not report occasions on which his partner worked, meaning there has probably been an overpayment in each of those periods of up to an amount equal to the difference between the single and couple rate of personal allowance, plus EDP and perhaps also Carer Premium - or is the wife’s carer role new for UC?
What you need are the entitlement letters he received from time to time. If they show that an amount of ESA(ir) has been awarded, and crucially if they advise him to report a change of that kind, then it will appear at first sight that there has been a recoverable overpayment. His only defence to that would be that he made it clear at the outset that he was only interested in claiming ESA(c), firmly believed that he was only getting ESA(c) and reasonably assumed he had no need to report changes in the circumstances of his partner. The root cause of the overpayment would then be DWP’s misinterpretation of his instructions at the time of the claim rather any failure on his part to disclose changes. Which seems like a tall order.
The absence of any dishonest intent, or even of any knowing failure to disclose on his part will be a defence were DWP to bring criminal proceedings but won’t get him out of the overpayment.
The amount of the overpayment needs to be carefully checked: it should be at the absolute maximum the difference between ESA(c) and the ESA(ir) applicable amount and only at times when the partner worked.
The old-style ESA claim forms (ESA1) had a first section which everyone needed to complete and which related to cESA and then a second section which was optional and which was designed to assess irESA entitlement. The claimant had the option of not completing the second section and therefore waiving any irESA entitlement they may have had.
I agree that, strictly, it is just a claim for and award of ESA but the DWP would routinely process “cESA only” claims in cases where e.g. the client knew that they had a partner in full time work or £50k capital in the bank and there was no sense in having their ir entitlement assessed. A cESA-only claimant could later fill out an ESA3 form to request supersession if they thought they may be entitled in the future.
Does not change the analysis above really, but it is not so far-fetched that he may have been one of these “cESA only” claimants.
I think it is certainly a case where you request MR and then appeal and then it is for the DWP to prove their case.
Thank you both, there is plenty of food for thought here. We’ve now done a very basic MR just to start the process and asked for a detailed explanation. We’ve got a schedule of overpayments and they make no sense whatsoever, but he has certainly never been paid EDP or carer premium. The last payment he received was £129.50 ie single person ESA plus support group. So we’ve got some work to do before we go to appeal!
A rare occasion I’m going to disagree with esteemed posters. DWP are trying to recover an o/p of a benefit attached to no more than an assertion of what was claimed unaccompanied by such basic evidence as a claim pack. There is a phrase for this and I am too polite to use it here but it begins with “Taking the…”. Absent the claim pack they can’t begin to construct a case for recovery.
Any MR would surely begin with a response that in a case were the onus is on DWP to show a failure/misrepresentation they have yet to even establish that a claim for said benefit was made.
That aside, there is plenty of case law around the fact that, regardless of which form of ESA you claimed, DWP were obligated to assess for means-tested as well as contributory. The failure to complete a section did not remove the DWP from the obligation to assess precisely it was two benefits presented as though they were one. Had my head buried in that case law for some years as a case I inherited off one of my staff which ultimately lost but had a long section within quoted here repeatedly about exactly this. Have blanked out the case for the sake of emptying my brain but easy enough to locate if needed as I remember the client vividly.
I am sure we have disagreed about lots of things Mike but I don’t think that we do on this one?
The cases you are thinking of are most likely LH v SSWP (ESA) [2015] AACR 14 and Smith v SSWP [2018] UKUT 270 (AAC). The effect of the former being that the two flavours of ESA are certainly one benefit and the effect of the latter being that a failure to assess eligibility for irESA on conversion from IB would be official error. I am not sure that there is similar authority that it would be official error to fail to assess irESA in circumstances where the claimant has deliberately chosen not to complete that section of the form.
But these are not necessarily points which are helpful to the client here. If he is indeed going to say “I completed the claim form to indicate that I only wanted cESA. That was a valid option on the form that the DWP gave me. To the extent that they are now saying that they have paid me irESA to which I was not entitled, that is only because they have ignored what I wrote in their form and have ignored the terms of their own form.” then this is really a challenge to recoverability rather than an argument about whether or not the DWP were entitled to ignore possible irESA entitlement.
I also agree with you that the DWP have to prove their case on the overpayment and will have a very hard time proving their case without the claim form, particularly if everything turns on the specific way that it was completed.
Therefore when Maisie says:
“So we’ve got some work to do before we go to appeal!”
I wouldn’t see it like that. The onus in the first instance is on the DWP to establish that there was an overpayment and that it is recoverable. I think you are perfectly able to put the appeal in on the grounds that the decision making is confused and incoherent and the DWP have not made out their case, then look to see what sense can be derived from the full appeal papers.
The cases you are thinking of are most likely LH v SSWP (ESA) [2015] AACR 14 and Smith v SSWP [2018] UKUT 270 (AAC). The effect of the former being that the two flavours of ESA are certainly one benefit and the effect of the latter being that a failure to assess eligibility for irESA on conversion from IB would be official error. I am not sure that there is similar authority that it would be official error to fail to assess irESA in circumstances where the claimant has deliberately chosen not to complete that section of the form.
But these are not necessarily points which are helpful to the client here. If he is indeed going to say “I completed the claim form to indicate that I only wanted cESA. That was a valid option on the form that the DWP gave me. To the extent that they are now saying that they have paid me irESA to which I was not entitled, that is only because they have ignored what I wrote in their form and have ignored the terms of their own form.” then this is really a challenge to recoverability rather than an argument about whether or not the DWP were entitled to ignore possible irESA entitlement.
Wholly agree Elliot. I’d have to check but I think it was my case which established the view that there is authority it would be an error to fail to assess irESA where the claimant didn’t complete that section. Pre-dated the above decisions I think. Was posted here at the time but the overall case was a loser so the substantial section on how a claim to ESA ought to be addressed was widely ignored until the subsequent decisions.
The last payment he received was £129.50 ie single person ESA plus support group. So we’ve got some work to do before we go to appeal!
Putting aside what Peter, Mike and Elliot have to say for the moment (none of which I disagree with) it is going to be worth you checking whether the other payments of ESA were also for this amount.
Because £129.50 p/w is the ‘correct’ amount of C-ESA for a person in the support group. But the applicable amount for a single person in receipt of IR-ESA who is in the support group (or C-ESA topped up with IR-ESA) is £149.05 p/w.
So the above does at least very strongly suggest that what the client has been paid is C-ESA.
It’s been a while since I’ve had to check on the mechanics of one of these cases, so I don’t remember exactly how it works. A person in receipt of non-time-limited C-ESA will be paid £129.50 in all cases (subject to reductions for pension payments) - but what happens where they are also in receipt of IR-ESA top up? Is payment of the IR-ESA amount made separately or are the two combined into a single payment? I
Obviously, you’re going to need to do the digging that others have suggested, but the above might give you a quick and pretty accurate idea of whether there’s any overpayment at all here. Unfortunately, these days it would absolutely not surprise me to discover that some numpty in the DWP had decided that a person who had been properly in receipt of C-ESA (and nothing else) for a number of years had been overpaid this on the basis of their partner’s earnings.
Moot point but I dug out my case. Clearly I have memory issues with regards to the content but if anyone is interested it was DJ v SSWP (ESA) [2015] UKUT 0342 (AAC). Also known as CE 277/2014. A fascinating read regardless of what turns out to be its irrelevance here.