irESA following change of circumstances

This is probably very obvious but I would appreciate any thoughts.

Client is appealing decision not to backdate irESA to 2010.  Chronology as follows:

March 2010: Client claimed cESA. 

May 2010 Client made a new claim for DLA.

September 2010: DLA decision received, Client awarded MRC/LRM. 

September 2010: Client’s partner claimed Carer’s Allowance.  Client became entitled to irESA due to Carer Premium.

September 2010: Client informed local JC+ Personal advisor of DLA award and CA application during an appointment (possibly WFI).

October 2011: Client was advised by another local JC+ Personal advisor of entitlement to irESA.  Client completed form ESA3.  irESA award from October 2011 only.

CPAG 2012/13 page 191 states

Change of circumstances

“You must report changes in your circumstances ... promptly either by writing to or telephoning the office handling your claim - unless the DWP has decided you can tell it in another way “.

Question:

As Client did not notify appropriate office (i.e office of DWP whose address is shown on decision notice) but local JC+, are there any grounds for the appeal on the basis she did notify DWP at JC+ and they failed to forward information to appropriate office?

Many thanks in advance.

Thanks for your reply Tony.

Apologies, I should have stated that irESA has already been backdated for a maximum of 3 months. 

No other option.  I’m really just grasping at straws for further backdating on the basis that claimant had informed local JC+ of change of circumstances but as I understand because it is not the appropriate office this fails.

Ir-ESA should be payable from the date the CA started – Regs 6(2)(e) and 7(7)(a) D&A Regs. 

Incidentally, CA could have been awarded from May 2010, ie the same date as DLA started, provided carer met the other CA conditions of entitlement - Reg 6(33) Claims and Payments Regs.

Edit: re-read your post.  Client has appealed Oct 2011 decision (when I originally posted I thought she hadn’t) in which case the tribunal has no option but to allow the appeal and award arrears to Sept 2010.  Out of interest, is the DWP contending that the decision under appeal (ie dated Oct 2011) is a decision on a new claim for ir-ESA or a supersession of the ESA already awarded in the form of CESA?  The latter position is correct (see below) but it makes no difference to your chances of winning at appeal.  The tribunal can simply replace the Oct 2011 decision with a decision that supersedes the March 2010 award to pay ir-ESA from Sept 2010.

ESA is a “relevant benefit” as defined by section 8(3) SSA 98.  Section 1 WRA provides that you are entitled to ESA if you satisfy the conditions for EITHER ir-ESA or CESA.  Once you qualify for one of the allowances, your ESA is up and running and any subsequent changes are by way of section 10 SSA (supersession) not section 8 SSA (new claim).

Thanks Tom.

Claimant’s partner was in receipt of cJSA until June 2010 therefore no entitlement to irESA until underlying entitlement to CA awarded from May 2010.

Claimant completed ESA3 in Oct 2011 and awarded irESA from this date.  After receiving decison she wrote to DWP requesting backdating to May 2010 this was treated as a request for backdating and irESA was backdated to Aug 2011.  Claimant appealed this decision still seeking backdating to May 2010. 

DWP are now saying that her claim for irESA should not be treated as a new claim but should have been treated as a request for a revision.  But since it was outside of the timelimit for a revision the DWP now determine that it should have been treated as a supersession and dealt with under regulation 6(b)(i) in that the decision had been made in ignorance of the material fact that she had since indicated that she wished to claim for her partner (and should be award from Oct 2011 only).

The DWP quotes “Paragraph 12 to Schedule 3A to the Decision Making and appeal Regulations specifies that the date from which the decision superseded takes effect shall take effect.  The decision is advantageous to the claimant and should take effect from the date of the application for the supersession which is Oct 2011.”

When his cJSA expired in June 2010, he could have claimed income-based JSA as a top up of her cESA or she could have topped up her own cESA with ir-ESA (leaving him to claim unemployment credits only).  But it looks like they did neither and she just stayed on cESA until Oct 2011 when she completed an ESA3 to apply for ir-ESA.  The DM then makes what can only be a supersession decision (superseding her existing cESA) to award ir-ESA from Oct 2011.  She’s not happy with that decision and requests that it be looked at again so that she can be awarded arrears from May 2010, ie the date that a carer’s premium first became available in her ESA applicable amount.  Whether she realised it or not, that was a revision request.  It’s unclear whether she makes it within a month of the Oct 2011 decision but it doesn’t matter because the DM decides to revise.  However, although the decision, as revised, is more advantageous to her, it still only awards ir-ESA from Aug 2011.  So she exercises her appeal rights, the time limit for doing so running from the date the DM made the revised decision rather than from Oct 2011 - see section 9(5) SSA.  The date of the decision under appeal is still Oct 2011 however.

It’s no good the SSWP arguing in its later appeal submission that she was out of time for making a revision request if, indeed, she was.  It can be inferred from the fact the DM makes a revision decision in the client’s favour that he was satisfied that either her revision request was in time or that he’d extended the time limit under Reg4 D&A for the request to be made.

The SSWP submission appears to be suggesting that because she wants ir-ESA backdated to May 2010, ie one month before the partner’s cJSA expired, then the supersession of her ESA can only be effective from Oct 2011.  They rely on para 12 of Sch 3A to the D&A Regs but that provision only applies “where an amount of IS or JSA payable under an award is changed by a superseding decision..”.  Well, the amount of his cJSA is not being changed by the supersession of her ESA, so para 12 does not apply.  It’s the amount of her ESA that’s changing from May 2010. 

There was a supersession decision dated Oct 2011 which was wrong because its grounds should have been Reg 6(2)(e) and 7(7)(a).  The DM revised it, replacing it with a new supersession decision (which, legally, is still dated Oct 2011 regardless of when the revision decision was made).  The new supersession is still wrong because it too is not made under Reg 6(2)(e) etc.  The tribunal should put that right.

Incidentally, the normal 3 months’ backdating rule does not appear to apply in the present circs, ie where she had an existing award of ESA that paid her one allowance (cESA) and she is applying for supersession in order to also be paid the other allowance (irESA). Reg 19 Claims and Payments Regs which sets up the standard 3 months’ backdating only applies where you are “claiming any benefit”.  Reg 2 C&P includes a very limited number of supersession and revision requests in the definition of “claim for benefit”  for these purposes and your client’s supersession is not one of them.

Thanks again Tom.  Couldn’t you sleep?!

At the risk of being obtuse (I have conferred with team before posting again) struggling to understand how Regs 6(2)(e) and 7(7)(a) D&A Regs are satisfied. 

I thought that ESA is 1 single benefit with 2 parts which supports a supersession instead of a revision so how is the following satisfied:

“claimant or a member of his family becomes entitled to ANOTHER relevant benefit or an increase in the rate of ANOTHER relevant benefit.”

“entitlement arises to the OTHER relevant benefit referred to in regulation 6(2)(e)(ii) or (ee) or to an increase in the rate of that OTHER relevant benefit”

I know that in Regs 8(3)(ba) D&A Regs a relevant benefit includes “an employment and support allowance”.  Does the deliberate wording i.e. the use of “an” mean that irESA and cESA are each treated as a qualifying benefit?

ESA is one benefit and for the purposes of reg 6(2)(e), a relevant benefit under s8 of the SSA.  CA is the other relevant benefit, also under s8, for the purpose of reg 6(2)(e)(ii).  Thus, if the award of CA to the ESA claimant’s partner gives rise to an entitlement to IR/ESA then because, as Tom said, the ESA award is already up and running then it is a supersession decision and the increase in the ESA is effective from the effective date of the CA award under reg 7(7).

Thanks Nevip.

After I posted I realised that s.8(3)(a) of the SSA was satisfied because of her partner’s entitlement to Carer’s Allowance as you stated.  I clearly failed to consider this before having focused entirely on ESA as the relevant benefit.

Apologies for my poor referencing in my last post.