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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

ESA – migration cases – inaccurate IRESA assessments?

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Anthony Collins
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From the other side - 25 August 2017 02:40 PM

Update on my case that I had taken to UT, received letter from DWP Legal department confirming that arrears should have been paid as the assessment for IR ESA should have been carried out before the conversion decision was issued.

Happy to provide copy of suitably redacted correspondence to anyone that is having similar issues.

Hi From the Other side,

Could you give me a copy please.

I know its semi-redundant, while we all wait to see the UT decision in your case with regard to DWP assertion “that it isn’t official error but error in law and that the error in law only became apparent after the LH decision” therefore trying to restrict the amount of arrears payable.

But I need part where the DWP Legal department confirms that arrears should have been paid, for a client case as im involved with a case which has similar going ons to Stevens above.

A copy of the correspondence would be v.useful at this point

Thanks

 

Dan_Manville
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Anthony Collins - 05 January 2018 02:21 AM

Anyone willing?

 

I have enquired of certain IT whizzes I know whether we could work some magic. If the threads weren’t indexed and looking at that excerpt I can believe that, then we might need some magic.

Dan_Manville
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stevenmcavoy
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stevenmcavoy - 04 January 2018 01:14 PM

ive another appeal on a refusal to backdate to the point of migration coming up.  so far they have:

failed to send me a copy of the submission papers
the papers dont mention a notice of conversion
there is no copy of the “invitation” they apparently sent inviting the appointee to “claim” income related
and for some reason the migration decision took affect from almost 4 weeks after it was made

this appeal was refused.  to an sor request i go.

Stuart
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FOI response provides a process map that DWP has been using to review and correct claims (but includes nothing on the backdating issue)

https://www.whatdotheyknow.com/request/450795/response/1092843/attach/html/4/FoI

Anthony Collins
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stuart - 10 January 2018 12:24 PM

FOI response provides a process map that DWP has been using to review and correct claims (but includes nothing on the backdating issue)
https://www.whatdotheyknow.com/request/450795/response/1092843/attach/html/4/FoI

Hi Stuart, it was in a response to my FoI

stevenmcavoy - 10 January 2018 12:18 PM
stevenmcavoy - 04 January 2018 01:14 PM

ive another appeal on a refusal to backdate to the point of migration coming up.  so far they have:

failed to send me a copy of the submission papers
the papers dont mention a notice of conversion
there is no copy of the “invitation” they apparently sent inviting the appointee to “claim” income related
and for some reason the migration decision took affect from almost 4 weeks after it was made

this appeal was refused.  to an sor request i go.

Hi Steven
Any information on why the appeal was refused

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Daphne
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NAWRA has a done a follow up letter as a welcome to Ms MsVey on her first day in office…

Anthony Collins
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Daphne - 10 January 2018 01:39 PM

NAWRA has a done a follow up letter as a welcome to Ms MsVey on her first day in office…

Excellent letter Daphne, it is going to be very interested in the reply you get to this from her. Her appointment has had a unprecedented reaction, when a press so right wing and so propaganda agenda based against disabilities, is taking it on their own bat to write articles sub-headed
WHY DO PEOPLE THINK ESTHER MCVEY IS ‘DANGEROUS’? 
http://www.dailymail.co.uk/news/article-5254109/Thornberry-REFUSES-slam-McDonnell-attacks-McVey.html

It will be also be interesting to see the outcome of From the Other Sides Upper Tribunal.

 

stevenmcavoy
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Anthony Collins - 10 January 2018 01:37 PM
stuart - 10 January 2018 12:24 PM

FOI response provides a process map that DWP has been using to review and correct claims (but includes nothing on the backdating issue)
https://www.whatdotheyknow.com/request/450795/response/1092843/attach/html/4/FoI

Hi Stuart, it was in a response to my FoI

stevenmcavoy - 10 January 2018 12:18 PM
stevenmcavoy - 04 January 2018 01:14 PM

ive another appeal on a refusal to backdate to the point of migration coming up.  so far they have:

failed to send me a copy of the submission papers
the papers dont mention a notice of conversion
there is no copy of the “invitation” they apparently sent inviting the appointee to “claim” income related
and for some reason the migration decision took affect from almost 4 weeks after it was made

this appeal was refused.  to an sor request i go.

Hi Steven
Any information on why the appeal was refused

im not entirely sure but i think his argument was he didnt have the power to review the original migration decision.  i will obviously be challenging that.

GWRS adviser
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Interesting to see that the process map above seems to indicate that vulnerable claimants who do not return an ESA3 will be referred for a core visit at home to assist with form completion.

Dan_Manville
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Daphne
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Welfare Rights Adviser
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How about starting with:
I appreciate that your experience of being a GMTV presenter means that like a current presenter you know everything including technical aspects of social security law….

Anthony Collins
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Daphne - 24 January 2018 11:33 AM

Reply from Esther to NAWRA - I’m just composing my reply…
http://www.nawra.org.uk/index.php/letter-to-secretary-of-state-for-work-and-pensions-about-income-related-esa/

I have seen one claimant online butterflies56 says they are one of the claimants and has had that official response by 19th Dec 17
http://forums.moneysavingexpert.com/showthread.php?p=73429887

What they are trying to is limiting of arrears under s27 of SSA 1998, by way of decision in accordance with LH by way of section 27(1)(b) so Section 27(3), so LH not applies to claims before 21st October 2014 somehow they claim “not relevant LH new claim”

The “not relevant LH new claim” is important, Which you spotted Daphne

New claim rules on backdating are completely different to a conversion case rules.

A new claim would elicit the need to complete a ESA IR or ESA CB, while a IB conversion if put in the support group there was no ESA CB or ESA IR, it was a downgrade to ESA CB with loss of SDP, and of course the only difference in the two is capital, which they never asked about. The DWP also choose which ESA form sent out on conversion. The fault is theirs alone.

I say LH is completely different and DWP are wrongly applying it (on purpose!) to this, a different situation.

The legislation is, incase anyone sees a hole is

Social Security Act 1998 1998 c. 14Part IChapter IICases of error
Section 27 Restrictions on entitlement to benefit in certain cases of error
this section applies where
(a)the effect of the determination, whenever made, of an appeal to a Commissioner or the court (“the relevant determination”) is that the adjudicating authority’s decision out of which the appeal arose was erroneous in point of law; and
(b)after the date of the relevant determination a decision falls to be made by the Secretary of State in accordance with that determination (or would, apart from this section, fall to be so made)
(i)in relation to a claim for benefit;
(ii)as to whether to revise, under section 9 above, a decision as to a person’s entitlement to benefit; or
(iii)on an application made under section 10 above for a decision as to a person’s entitlement to benefit to be superseded.
(3)In so far as the decision relates to a person’s entitlement to a benefit in respect of
(a)a period before the date of the relevant determination; or

This of course is all based on LH 21st october 2014 from rightsnet member “From the Other side” of Client Representation Unit (CRU) Citizens Advice and Rights Fife (unsure of the advisors real name as they post as From the Other side)

I believe the DWP scoured the entire decision document line upon line until they hit upon the 1 phrase they were desperate to find in any decision, “error in law”, as opposed to other decisions phrasing it “official error” - which is where the mistake is.

From the Other Side mentioned the UT was heard in December 2017 so we have this in addition to need to know the outcome and the UTs opinion “not relevant LH new claim” or because it was a new claim decision only apply to new claims…and the reterming “official error”

I feel like the recent high court win for Mental Health PIP descriptors being discriminatory this may be something that needs the Disability Rights Campaign type court action to get the correct decision with regard to the fact of the case being a new claim vs conversion and discriminates against those who were ill in 2010 and were correctly assessed vs those who were ill in 2010 onwards but werent correctly converted - why should one been paid in full by chance and the other not paid by DWP official error and never recovers their due payment” the amount the law says need to live on” for those years.

I know From the Other Side said they are fighting this hard and sent 3 lawyers to fight - so no expense is spared.

With that in mind has NAWRA had comment from the Labour opposition? Labour pledged to overturn the PIP change anyway if they won, is there a stated position from Labour on how the DWP has handled this DWP mistake of 2010 2011 2012 2013 2014 onwards, and DWP imposing a limit of October 2014 disadvantaging claimants of their due “what the law says they needed to live on” for 200 to most of 2014! Now is the time to see if they formed a government or they are pushing for full compensation of the owed amount not this arbitrary limited amount. It may focus the current government mind that fighting this also wont achieve what they aim for long term.

Remember we know DWP were aware though the ESA(IR) Noticeboard document from 2013 and other advisers on this thread here have posted they have correspondence and cases from back to 2012 proving this, It may be a need to collate the filled letters from those that can scan and upload them from archived files to prove this conclusively - DWP knew pre-October 2014 and were sorting cases prior so cant rely on 2014 to avoid their obligations.

Can those with decisions and correspondence redact personal info and then upload to back this up so we have a complete picture now while this fight is in full fight

I really feel for my clients in this situation because prior cases, before the news headlines on this matter, clients were getting fully resolved and compensated.

Im sure the DWP feels they managed without it, but of course that is not to compare the debts on heating, credit cards, loans that those without built up and the things that need sorting that werent like new clothing remaining unbought etc. versus those getting a correct payment. It is called “the amount the law says need to live” on for a reason

[ Edited: 2 Feb 2018 at 01:29 am by Anthony Collins ]
Rosie W
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Just had a conversation with a client who got a phone call out of the blue from ESA - he was asked security questions and told he might be entitled to an additional amount and they would take details of his income etc over the phone. He is an anxious chap anyway and was quite disturbed by this call. He gave me the direct line number he was given - 0161 912 8091 so I rang it. Apparently there are now 4 ESA offices dealing with the trawl for conversion cases who were not/may not have been correctly converted.

While it is good to see the DWP doing something proactive for a change, is making cold calls to people getting a sickness benefit an appropriate way of doing it? The (helpful) woman I spoke to said if they are unable to get details over the phone they can send out a modified (don’t know in what way) ESA3 or offer a home visit. She couldn’t comment on whether any additional amounts would be backdated.

I appreciate DWP want to deal with this as quickly and cheaply as possible but I would think a “warm up” type letter before the phone call would be more appropriate. Also, if the top up is not backdated to the date of conversion how will people know they can and should challenge this?