Refusal of ESA - URGENT

the DWP don’t have a duty to chase for information needed - its the customers responsibility to ask for that - so they can ask customer/deputy and in this case also wrote to Home office - good practice woul dbe to send a remionder/2nd request for the info but not required.

If info not provided then they will refuse claim - usually saying provide what we need within a month and we will look at it again

From my very hazy recollection
Incapacity Benefit was contributions based benefit, and it was higher than Income Support foe being unable to work

So no immigration status needed to award Incap Ben ( as its contributions based) but ESA is usually assessed for entitlement to both income related and conts based - so would need details of leave to remain/ etc for that claim - However, if it was already on file somewhere with DWP ( ie they already had a copy of his ILR on file) then they wouldn’t need to see it again/ask for it again unless they had reason to think he had lost it somehow.

Thank you for the response.

The DWP refer to the reason for closure as reg 22 of ESA regs 2008.

ESA regs 2008 22 –
22.—(1) Where a claimant fails without good cause to comply with the request referred to in regulation 21(1)(b), that claimant is, subject to paragraph (2), to be treated as not having limited capability for work.
(2) Paragraph (1) does not apply unless—
(a)the claimant was sent a further request at least three weeks after the date of the first request;

Therefore if they failed to send a further request would that not be classed as official error?

In actual fact it doesn’t matter for this tribunal as I found another error, with regards to the DWP speaking directly to the claimant when they had an appointee.

The DWP’s reply is nonesense because the ” request under Regulation 21(1)(b)b is

“any information relating to a claimant’s capability to perform the activities referred to in Schedule 2 as may be requested in the form of a questionnaire;”

Reg 21(1)(c) refers to

“any such additional information as may be requested”

“Any such other information as may be requested” does not include qquestions about immigration status a Reg 21 is headed

Information required for determining capability for work

Reg 21 is only about ESA50’s and additional “medical ” information

Stainsby - 23 March 2023 05:42 PM

The DWP’s reply is nonesense because the ” request under Regulation 21(1)(b)b is

“any information relating to a claimant’s capability to perform the activities referred to in Schedule 2 as may be requested in the form of a questionnaire;”

Reg 21(1)(c) refers to

“any such additional information as may be requested”

“Any such other information as may be requested” does not include qquestions about immigration status a Reg 21 is headed

Information required for determining capability for work

Reg 21 is only about ESA50’s and additional “medical ” information

Apologies, that’s my mistake. There were 2 refusals. The first was in 2015 on migration from IB and used the above legislation as the ESA50 had not been returned. The 2nd refusal in 2016 relates to immigration.

“The DWP don’t have a duty to chase for information needed - its the customers responsibility to ask for that - so they can ask customer/deputy and in this case also wrote to Home office - good practice woul dbe to send a remionder/2nd request for the info but not required.

If info not provided then they will refuse claim - usually saying provide what we need within a month and we will look at it again”

I don’t agree here

This was debunked by Baroness Hale in handing down the House of Lords Judgment in Kerr v Department for Social Development for Northern Ireland (reported as R1-04 (SF)) (paragraphs 62-63)

62. What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.

63. If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998, “a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn.” The same should apply to information which the department can reasonably be expected to discover for itself.

What further complicates matters is that the Home Office now recommend that other departments use the Employee Checker Service:

https://www.gov.uk/employee-immigration-employment-status

DWP of course simply fall back on burden of proof which as Derek has rightly pointed out above is weak; although in the case in hand; where the IB file is probably long shredded, that might be a big ask.

That said; in what emerged to be the first Windrush case I saw; I successfully argued that they would have confirmed the claimant’s imm status for Supp Ben and that should be enough; citing Kerr along the way.

Thank you both for the replies. I’m 100% confident I can get the decision from 2016 (immigration) overturned as I found another error. However, it would be in the client’s interest to have the IB-ESA decision overturned (non-return of ESA50). His severe physical and mental disabilities would have made it pretty much impossible to complete and return the form.

Dan is no doubt correct twhen he says that “DWP will fall back on the burden of proof” but I would argue that the burden is on the DWP because migration to ESA (unlike DLA to PIP) was a supersession process not requiring a claim for the new benefit.

The burden of prrof rests on the party seeking the supersession (i.e. the DWP in this case)

Stainsby - 24 March 2023 12:48 PM

Dan is no doubt correct twhen he says that “DWP will fall back on the burden of proof” but I would argue that the burden is on the DWP because migration to ESA (unlike DLA to PIP) was a supersession process not requiring a claim for the new benefit.

The burden of prrof rests on the party seeking the supersession (i.e. the DWP in this case)

I did try to argue that with the judge but she wasn’t interested.

Burden of proof has always lain in theory with the party seeking to establish a decision. Claimant for a claim. Claimant if they’re seeking to challenge. DWP etc. if they’re seeking to challenge. It’s something I’ve used repeatedly to wipe large overpayments i.e. you’re the party seeking to recover, let’s see your evidence then and in many respects it’s a much under-used concept.

Nowadays though I think it’s a nebulous beast Judges and tribunals much less likely to look at who and much more likely to say “never mind who, what about the practicalities of what took place.” i.e. armed with the known facts what would a reasonable person do had they been in the place of that party. Kerr indeed.

I’ve now received information on the claimant’s capital at the time of the claim in 2016. Although I should be able to get the judge to accept the official error, it now turns out that at the date of application, he had more than £16k in net savings (once rent arrears are taken into account), therefore the judge is likely to disallow the appeal.

So, I now have the following questions:

1. Is there any mileage in trying to argue the decision in 2015 to refuse the claim as the ESA50 was not returned was wrong. The claimant was not in a position, due to disability, and without support, to complete and return the ESA50, and the DWP were already aware of his condition as part of his IB claim?

2. The (limited) documents provided, shows the ESA50 being sent but there’s no mention of a follow up as per:

ESA regs 2008 22 –
22.—(1) Where a claimant fails without good cause to comply with the request referred to in regulation 21(1)(b), that claimant is, subject to paragraph (2), to be treated as not having limited capability for work.
(2) Paragraph (1) does not apply unless—
(a)the claimant was sent a further request at least three weeks after the date of the first request;

Therefore the claim was refused without a follow up being sent.

As IB was a contribution-based benefit, regardless of his capital, on transfer from IB, wouldn’t he have been entitled to ESA-C?

This is complicated but any advice would be greatly appreciated.

Does anyone have any thoughts on the post above? Advice greatly appreciated.

The answer to the migration question is yes he would have been entitled to ESA c if the migration was from IB
If the migration was from IS on grounds of incapacity he would ofcourse be only entitled to income based ESA

Official error is certainly arguable around the (non ) issue of the reminder.

There was simply no power for the DWP to terminate entitlement (to IB) or refuse entitlement to ESA without that reminder, and doing so is a clear error of law

Thank you. When I raised the point with the judge at the first hearing she didn’t want to know, but I will complete a supplementary submission.