ESA – migration cases – inaccurate IRESA assessments?

Another factor to have on our radar with regard to this issue is that if the arrears totalling £5k or more are paid are back the date of conversion and it is an official error, the arrears can be disregarded indefinitely as capital, whereas if the arrears are not paid due to official error they can only be disregarded for 12 months. I recently got a chap more than £16k back to the date of conversion (just before all this argument based on LH came up and they were still paying full arrears) and if it’s classed as ‘official error’ arrears, the money will be disregarded indefinitely, but if it’s not official error arrears, it’ll only be disregarded for 12 months. Just a thought to consider. So the DWP’s perspective in this case also potentially has an impact on the treatment of clients’ arrears as capital when assessing ongoing entitlement.

Rosie W - 08 February 2018 09:51 AM

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?

I’m going to be doing NAWRA’s reply to Esther McVey on this issue imminently so will raise this too - we’ve already raised the arrears issue but I will reiterate.

http://www.nawra.org.uk/index.php/letter-to-secretary-of-state-for-work-and-pensions-about-income-related-esa/

Daphne - 08 February 2018 12:43 PM

I’m going to be doing NAWRA’s reply to Esther McVey on this issue imminently so will raise this too - we’ve already raised the arrears issue but I will reiterate.

http://www.nawra.org.uk/index.php/letter-to-secretary-of-state-for-work-and-pensions-about-income-related-esa/

Thanks Daphne

Rosie W - 08 February 2018 09:51 AM

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.

Very interesting info Rosie

Daphne - 08 February 2018 12:43 PM

Rosie W - 08 February 2018 09:51 AM

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?

I’m going to be doing NAWRA’s reply to Esther McVey on this issue imminently so will raise this too - we’ve already raised the arrears issue but I will reiterate.

http://www.nawra.org.uk/index.php/letter-to-secretary-of-state-for-work-and-pensions-about-income-related-esa/

AlexJ - 08 February 2018 12:25 PM

Another factor to have on our radar with regard to this issue is that if the arrears totalling £5k or more are paid are back the date of conversion and it is an official error, the arrears can be disregarded indefinitely as capital, whereas if the arrears are not paid due to official error they can only be disregarded for 12 months.

They seem to be attempting to subvert any decision we are all awaiting From the Other Sides appeal they had in December, by quickly making a limited arrears offer based on the UT October 2014 decision to clients. Thus limiting years of backpayment.

As Alex points out the difference in ” Official Error ” vs “error in law” will not only mean years of backpayment is missing for clients but also 1 year on there could be problems - this is money that should have been spent over 4 years from 2014, and 8 years from 2010!. This is after all the money the “law says need to live on”.

AlexJ - 08 February 2018 12:25 PM

I recently got a chap more than £16k back to the date of conversion

Alex, is it possible for you to kindly upload a redacted copy of the award letter

I have a case going on and it would be very helpful in my clients case

Thanks

At the UT appeal, the judge unfortunately decided that LH was a relevant determination and that the DWP is entitled to apply Section 27 and there is no discretion available to the DWP to not follow Section 27 even though they have previously paid out earlier than the LH determination on cases they had decided after the LH decision was issued.

From the other side - 08 February 2018 01:58 PM

At the UT appeal, the judge unfortunately decided that LH was a relevant determination and that the DWP is entitled to apply Section 27 and there is no discretion available to the DWP to not follow Section 27 even though they have previously paid out earlier than the LH determination on cases they had decided after the LH decision was issued.

could i see a copy of the full decision?

From the other side - 08 February 2018 01:58 PM

At the UT appeal, the judge unfortunately decided that LH was a relevant determination and that the DWP is entitled to apply Section 27 and there is no discretion available to the DWP to not follow Section 27 even though they have previously paid out earlier than the LH determination on cases they had decided after the LH decision was issued.

Wow this is horrifically bad..I remember you saying they sent 3 solicitors to fight for it to stand, so is there any way to take it forward like the PIP mental health descriptors was taken higher, once the decision is looked at?

Recovery under Social Security Legislation
1.3 There are several causes for overpayments that fall under this heading:
? Overpayment due to late award of other benefit /income

This would also mean if not taken no further, if it was not entitled to be paid out, the SSA Act means it can be clawed back indefinitely by way of it being a an overpayment. Some paid clients can expect a letter in 1 years time as the system calculates if this stands. Ive had clients with recalculation decisions.

Daphne What does Nawra and you make of it ?

Has Nawra ever had a position on it from the opposition (Labour) they were vocal about the PIP mental descriptors change but ive not heard a peep about this

Also how about an update to the BBC news which started the press attention about how they trying to wriggle out of this like they did with PIP.

The fact that
a-they have previously paid out earlier than the LH determination on cases they had decided after the LH decision was issued
b- from the award letters on arrears some of us advisers will have in the files 2012 2013 2014 they were contacted about errors before they say they knew AND did pay
c- we also have the caffrey noticeboard from June 2013
d- this thread alone started 6 FEBRUARY 2014,

stevenmcavoy - 08 February 2018 02:49 PM

could i see a copy of the full decision?

Yes please From the other side upload a copy.

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.

From the other side, If possible please can you give me, the redacted copy of the client letter which precipitated the UT you gave a few people on here as Im having problem even getting the CRT to acknowledge a backpayment.

If this stands just 1 client of mine alone will lose 2 and 1/2 years payment thats missing and should be owed.

DWP acknowledge money should have been paid out earlier so there will not be looking at clawing money back from anyone already paid out on.

As stated in earlier they made the case that the Law allows them to change how they view anyone that should have been paid out for an earlier period due to the decision even though they have paid arrears further back for some clients. I have had arrears paid back to 2013 for 2 clients. It is in the decision “Pulling a rabbit in the hat”!!

Certainly looking at what can be done to challenge, which because case is in Scotland would be to the Court of Session. I have provided full details to Daphne and also Martin Williams at CPAG and will hopefully get some information from CPAG Scotland as Martin had spoken with them.

From the other side - 08 February 2018 04:08 PM

DWP acknowledge money should have been paid out earlier so there will not be looking at clawing money back from anyone already paid out on.

As stated in earlier they made the case that the Law allows them to change how they view anyone that should have been paid out for an earlier period due to the decision even though they have paid arrears further back for some clients. I have had arrears paid back to 2013 for 2 clients. It is in the decision “Pulling a rabbit in the hat”!!

Certainly looking at what can be done to challenge, which because case is in Scotland would be to the Court of Session. I have provided full details to Daphne and also Martin Williams at CPAG and will hopefully get some information from CPAG Scotland as Martin had spoken with them.

If theres no discretion available to the DWP to not follow Section 27, why will there not be a influx of overpayment letters in the years coming?

Theres no way to challenge a overpayment clawback where it is recoverable under SSA, Ive seen mistakes by the DWP with regard to IS overpayments and they’ve clawed back 5 years on… I am very wary when it comes to clawbacks as they have always been unrelenting and demanding using the SSA to take from the most vulnerable clients by act of law…

Specifically Recovery under Social Security Legislation
1.3 There are several causes for overpayments that fall under this heading:
? Overpayment due to late award of other benefit /income
? Overpayment of ESA since 2014

Unless you have a copy of a letter wrote by way of DWP legal team or stated on the record in court those payments made “are unrecoverable”....they will not accept it as owed, as they will always reply they are “overpayment demand is under SSA” therefore “recoverable”  and “there is no discretion” under SSA - ad infinitum

Will be interesting to see CPAG taking on the case.

It was The Public Law Project, Inclusion London, Revolving Doors and Disability Rights UK on RF v Secretary of State for Work and Pension re: DWP’s changes to PIP regulations were declared unlawful

I think From the other side’s UT decision needs to be appealed - I think you said the claimant was willing? I just think Judge Gamble is wrong!

I’m drafting NAWRA’s reply to Esther McVey - as far as I can see there is no way that s27 applies as it is clear from their own guidance - DMG para 45580 onwards - https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/658311/dmgch45.pdf -  that both irESA and contESA should be assessed - this guidance is dated Feb 2014 well before the LH decision.

Therefore it is not correct, as Esther McVey puts in her letter to NAWRA, that LH ‘established the legal principle’ that ESA is one benefit - the DWP already knew it. Therefore it’s an official error not to have assessed for both on migration.

I hope to get the letter done tomorrow. Welcome any other views…

I’ll talk to the NAWRA committee to see if we might get some sort of publicity on the issue…

Daphne - 08 February 2018 04:17 PM

I think From the other side’s UT decision needs to be appealed - I think you said the claimant was willing? I just think Judge Gamble is wrong!

I’m drafting NAWRA’s reply to Esther McVey - as far as I can see there is no way that s27 applies as it is clear from their own guidance - DMG para 45580 onwards - https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/658311/dmgch45.pdf -  that both irESA and contESA should be assessed - this guidance is dated Feb 2014 well before the LH decision.

Therefore it is not correct, as Esther McVey puts in her letter to NAWRA, that LH ‘established the legal principle’ that ESA is one benefit - the DWP already knew it. Therefore it’s an official error not to have assessed for both on migration.

I hope to get the letter done tomorrow. Welcome any other views…

I’ll talk to the NAWRA committee to see if we might get some sort of publicity on the issue…

Excellent Daphne.

Have not seen the decision yet to think about what what happened but as well as “they knew it was one benefit”

You already spotted it was a new claim not a migration claim!

Different forms different procedures.  New claims you ask for ESA. In migration the ESA CB was sent automatically by DWP (no income questions were asked), no IS10 no SDP. In a ESA IR a IS10 is sent for SDP
In support group allocations, it is automatically CB and so a IS10 never sent, but in the work group it reverts to IR as NI is used up in 1 year, so a IS10 would be sent for SDP - so being ill and staying severely ill has been detrimental to the most vulnerable DWP clients being in the support group!

The mess affects a very particular person - a conversion from IB, so sick they are in the support group and stayed there, and too ill to spot they were wrongly converted and missing years of SDP (which is addition worth nearly 90% value of ESA). With effect some who spotted the mistake 2016 did get paid what the law says they need to live on, and now since it hit the news when the most sick might have picked upon the mistake affecting them not - by all roulette, all to the most vulnerable DWP clients.

We come along way away from the statement the minister made in November to the press that all will be paid!

They are attacking the most vulnerable section of clients - those in the support group, stayed in the support group with a DLA/PIP award and missing years of what the law says they need to live on.

From the other side - 29 November 2017 11:38 AM

Has anyone notified Frank Field on how the DWP are trying to wiggle out of paying the full arrears?

I would suggest with publicity to the BBC, Guardian articles followed up, a sounding of opposition politically party support. I firmly believe if the Labour party hadn’t reiterated even after losing the election theyd still reverse PIP mental health the Torys would still be fighting it.

The key word is they are refusing to pay the “Severely Disabled”, which should by itself be damning!

Daphne - 08 February 2018 04:17 PM

I think From the other side’s UT decision needs to be appealed - I think you said the claimant was willing? I just think Judge Gamble is wrong!

...

Have you got a link to the decision? I cannae find mention of it anywhere.

Courtesy of From the other side, here it is -

Daphne - 12 February 2018 02:07 PM

Courtesy of From the other side, here it is -

The judge noted
“L.H. did not relate to a conversion case. Rather it related to a fresh claim.”

But then doesnt consider what a new claim involves vs a conversion in which by official error the DWP selected the wrong assessment form on conversion as standard excluding income assessment as a standard for all claims 2010 2011 2012 2013 2014 2015….

The judge is of the opinion “regulation 8(1)(a) has the effect of equating the situation of a conversion
claimant to employment and support allowance to that of a fresh claimant to that allowance.

that opinion
“that effect is of very considerable importance in the determination of this appeal.”

Rosie W - 10 October 2014 11:58 AM

Just had an appeal lapsed before the hearing due to the presenting officer noticing they have had the attached internal guidance, which he gave me a copy of, since June last year. As far as I can see it has not been reflected so far in Chapter 45 of the DMG which is disappointing.

However, I imagine a copy sent with a reconsideration request or appeal should produce a positive result.

I think its also telling that
Of course from 2013 DWP Caffas Noticeboard 05.06.13 Gabby “IB Reassessment, TA and ESA time limiting” in response to Mark Thomas Hanley BC “conversion decision revised for Official error” so conversion decisions were already marked as official error from 2013,
it was only ever New claims backdating that was undecided…conversion was always official error backdateable to the date of conversion

I note that the claimant in this case was sent an ESA3. Most of mine weren’t. I think we’re still game on in those circumstances.