DM says ESA can be paid during MR period!

I am tempted to name the decision maker at Lowestoft BC who told me this today (they should be named and shamed).

Client had appealed against a previous ‘found fit’ decision made some time prior to introduction of MR. This was eventually heard and allowed by a tribunal in April 14 placing client in the WRAG.

In the meantime client had made a new claim for ESA and was again found fit by a decision of 2/1/14. This was subject to MR (not changed) and then appeal with a hearing date next month.

Last week DWP finally applied tribunal decision of April and paid arrears including (as far as we can establish) the WRAC through to March 14 when client reached state pension age.

Therefore there appears no practical reason for hearing due next month as client has been paid full ESA inc WRAG up to date RP commenced (whether DWP intended to pay to that date or only 2/1/14 remains in doubt).

Request to DWP to confirm what they had done and why they have not notified HMCTS that the outstanding appeal has been lapsed.

Call back from a DM at Lowestoft appeals section - informed me that as the client had already been placed in the WRAG by a tribunal considering the earlier decision the claimant can be paid full ESA during the MR and appeal periods concerning the more recent decision and also that the hearing still needs to go ahead.

When I suggested that there was no legislative basis for any payment of ESA during the MR period and it should be at the assessement rate only during the appeal period and asked for the regulation that confirmed the DMs argument the DM suggested that I didn’t know my job and hung up.

What is almost certainly the case is that the DM at Cosham BC who paid the arrears through to RP age following the April tribunal did not notice there was the subsequent decision of 2/1/14 that client was fit for work which was still under appeal and paid anyway.

Now whilst there is a possible route within the regs that would allow DWP to do what they have done (and therefore why they should lapse the outstanding appeal) they clearly don’t know what that is.

It would seem that the tax payer will pick up the tab for a pointless appeal hearing!

So if your client has previously been receiving ESA with WRAC (or presumably SG) but is subsequently found fit for work you can argue that ESA should be paid during the MR period because the DM at Lowestoft BC says so and that we (or presumably anyone at DWP who decides or informs to the contrary) dosn’t know what they’re talking about!

Peter, your frustation is positively dripping from the page…

Poor you. I can just tell it was one of those phone calls after which you find yourself walking around the room like a thing possessed, muttering incoherent threats and making strange gestures. We’ve all been there.

Incidentally, I think your interpretation (that the DM overlooked the subsequent decision) is the correct one (I’ve had a few similar cases myself). I think if it were me I’d be tempted to let the appeal run its course (not that there seems to be much choice now anyway) and explain exactly what has happened (and what you’ve been told by Lowestoft) to the judge. It would be lovely if there was a PO present (you could even ask the judge to consider adjourning on the basis that one should be present to explain exactly why the appeal is going ahead…)

I will be preparing an application that a judge issues directions that DWP provide a further submission in time for the hearing to explain why the hearing needs to proceed! I didn’t list the number of prior calls to the caller centre and call backs from inappropriate sections of the BC (because caller centre staff can’t direct call backs from the appropriate section even when they are told who/where a case is being dealt with) prior to the call from the DM.

Still (to the well know tune by Flanders & Swan) “it all makes work for the working welf to do”.

Rather than seething we have all found the DWP/DM stance a great source of amusment to us on a hot & sticky Friday! True the extra work involved is also a tad frustrating! Now about those MR applications that I could have been doing instead…..

To all those DWP readers of Rightsnet - yes this is the kind of drivel we have to deal with from the Dept. every day and which generates so much additional work (and cost to the taxpayer). It will be used as an example of the administartive chaos and poor quality of decision making within the dept.