ESA Backdating

Client told in November 2011 awarded Contributory ESA in WRAG, appeal made to be moved to Support Group, was not told untill August 2012 (verbally) she had been revised to Support Group. Client advised she could claim an enhanced premium. Decision letter received confirming ESA in Support Group but contributory only, therefore no premium.

Income Based claim requested August 2012 and income based top up awarded from this dated.

Appeal has been made on basis had DWP made correct decision in November 2011 client would have made income based claim from then and been paid top up throughout, Is there any legislation for this or is DWP right in that, despite delay being their fault, they only have to pay from Income Based claim request date in August 2012? 

Thanks

There are two separate issues here, one of which I am brooding on myself.

First is the move to the Support Group. I am waiting for news of two clients who were placed into the Support Group on my application after having problems attending WFIs.

I have made late appeals in both cases but certainly in one it seems they are only superseding to place into the SG from the date I supplied further evidence rather than revising the decision under appeal. I’m not 100% sure yet but am waiting a call back from JCP to confirm whether that’s the case in one of the two and I’m 99% sure in the other but people keep failing to give me decisions.

The other issue is whether they have only accepted the IRESA claim as made in August. If JCP have done their job properly and revised the original decision from November they they should award IRESA from that ime. However I have seen situations where they have asserted that IRESA was only claimed from a later date. IRESA & CESA are not separate benefits; you claim ESA, hence the IRESA award should be made on revision at the first possible date rather than accepting a new claim.

This is exactly what DWP are are saying in their submission, ‘I sumit that at any point during her ESA claim from 26/10/11 she could have requested entitlement to ESA (IR) be considered.’ However client’s income exceeded whilst she was in WRAG, it wasn’t untill the enhanced premium became payable with the Support Group that she had any entitlement.

As noted above revised to Support Group from 26/10/11 but not told untill August 2012, how could she possible have known in October 2011 that she needed to make an IR claim because she was going to be told of a revision of decision 10 months later?

Does Reg 19 of claims and payments regs apply where maximum backdating is 3 months or is there an argument that client did make her claim at the earliest possible date so should be taken from 26/10/11?

The first page of the ESA1 says:

Do you want to claim income-related Employment
and Support Allowance?
Tick Yes if you are not sure.

If you do not claim income-related Employment
and Support Allowance now, but then ask for it
at a later date, we may only pay it from that
later date.

Does anyone know if “may” in that sentence is supposed to mean “might”, or “can”? Either way, what is the legal basis for that warning?

There are previous threads on this problem, eg http://www.rightsnet.org.uk/forums/viewthread/3869/

Client never had an ESA1,she is a conversion claim. DWP would have assumed she should remain a contributory claim only.

Please keep us updated re this one as I have a similar case. Client concerned was in receipt of CB ESA, passed WCA and was placed in SG. From that point onwards she should have attracted IR ESA (EDP). Client could not possibly have been aware of this and has lost out on 7 months of additional benefit to date. I’m awaiting a response from her local BDC but am expecting to encounter the same problem as you have done.

Will let you know, appeal was due to be heard on the papers at 3.30pm today, think Judge who was sitting is an actual Judge rather than Solicitor and is known for looking closely at legislation when making a decision.

ncodp - 11 February 2013 11:32 AM

... DWP would have assumed she should remain a contributory claim only.

And these cases will turn on whether the DwP are legally entitled to make that assumption. 

Under Reg 5(3) Conversion Regs the DWP “must” specify in its conversion decision letter the amount of ESA to which the person “is” entitled at the effective date of conversion.  That amount is calculated under Step 1 of Reg 8 as the amount of ESA the person “would be” entitled to “on a claim made by that person”.  So it would be strange if the DWP’s defence here to not awarding IRESA from day one of conversion was that the claimant had not made a claim for it.  Reg 8 deems a claim to have been made (and so does Regs 6(3) and 16(3) for that matter).

I think the DWP will seek to defend the refusal of IRESA as follows. 

They may accept that “claim” in Reg 8 above includes a claim for IRESA but only the modified version of IRESA found in the Conversion Regs, not the ordinary type of IRESA.  In the examples we are talking about, the claimant’s IRESA arises, it seems to me, completely outside the Conversion Regs, ie under Part 1 of the WRA 2007, in particular section 1(2).

However, the Conversion Regs modify Part 1 WRA so that income-related allowance means an allowance based upon an existing award of IS.  And Reg 8 above only requires the total amount of ESA to be determined “in accordance with Part 1”.  The DWP may argue that Reg 8 is referring to the modified version of Part 1 with the effect that Step 1 only includes IRESA if there was an existing award of IS.  Equally, a claim for IRESA is only deemed to be made where there was an existing award of IS.  So they would be assuming that the IB only claimant would be a CESA only claimant.

In other words the conversion process is purely concerned with administering entitlement to a “transitional allowance”.  That is the name given to converted awards of CESA and IRESA by para 8(1)(a) of Sch 4 to the WRA 2007.  Any non-transitional award of IRESA (eg, where you get an EDP on conversion which then qualifies you for IRESA but where you did not have an existing award of IS beforehand) would, the Dept may argue, have to be claimed separately by supersession.  I’ve seen a conversion decision letter in the last week where the person was put in the WRAG on conversion so EDP did not arise.  However,  it had a section headed “How do I get income-related ESA?” and basically advised the person to get in touch by telephone or textphone.

It’s easy to see why the above argument might be appealing to the Dept.  Imagine if, before being able to issue a conversion decision notification letter, they had to have completed their enquiries about a person’s income and capital or at least given the notified person the chance to provide such info.  Such enquiries would be necessary if Reg 8’s reference to “Part 1”  included a reference to both the modified and un-modified Part 1 WRA.  Whereas, if Reg 8 was only referring to the modified Part 1, the Dept could safely put the onus on the claimant to contact them in future and not allow the Dept’s ignorance of claimant’s income or capital to prevent a conversion decision being made.

The problem with the above argument is that it risks making Reg 8 Conversion Regs ultra vires para 7 of Sch 4 to the WRA in the way it excludes a claim for ordinary (non-transitional) IRESA from the meaning of “claim” in Reg 8.

Also, putting the onus on the customer to bring to the Dept’s attention possible entitlement to IRESA would appear to fall foul of the HL decision in Kerr, where the House held that the party best placed to obtain the information should have the responsibility for obtaining it.  Here the Dept knows what info it needs.  The claimant cannot be expected to know that the EDP pushes him into entitlement to IRESA.  The above invitation to get in touch doesn’t seem good enough.

As stated in the linked thread, those put into the support group on appeal should return to the tribunal if IRESA not awarded from effective date of conversion. 

Those put into support group on revision have one month to appeal the refusal to pay IRESA arrears to day one of conversion.

Those in the support group from day one but only awarded IRESA later, eg from date of a supersession request, should either late appeal the conversion decision (if latter is less than 13 months’ old) or appeal the supersession decision itself and ask the tribunal to substitute a revision (awarding IRESA from day one) for the supersession.  The tribunal can do this even if the supersession decision is more than 13 months since the conversion decision, as long as the DM has not expressly refused to revise the conversion decision – see R(IS) 15/04.

Thanks for the posts, have made things much clearer. Have received Decision Notice this morning, client has won appeal and awarded Income Related backdated to 26/10/2011, will let you know if Secretary of State asks for a SOR!

Thanks for the update….