ESA – migration cases – inaccurate IRESA assessments?

That was good that you raised the potential for financial redress under Maladministration as I have requested that for my client! The only problem is that there is no way to appeal the decision if they say no. Time will tell.

Client was finally paid her arrears on Friday following the issue of the decision on 19/1/18 but only because I chased them from the top, although to be fair to Bathgate Benefit Centre they bent over backwards to get the client paid as soon as they became aware of her circs.

Have a meeting next week with the local Law Centre to look at potential to appeal the UT decision.

Ooh - good luck - keep us informed - they mentioned your case at the meeting yesterday - I said we hoped an appeal would be going ahead…

Considering what’s going on in this thread does anyone have any advice on what we should do with clients who have had their money paid back to October 2014 but we believe should be entitled to go even further back (in the specific case I have it would be through to 2012)?

Follow the usual MR and appeal process as a sort of protective claim or just leave it until the law is, hopefully, shown to be in our favour and then go back to the DWP at a later date for the rest? At the minute I’m leaning towards just doing an MR/appeal but I’m not sure if that’s the best way to go.

I would say MR/appeal and also consider putting in a claim for financial redress -  https://www.gov.uk/government/publications/compensation-for-poor-service-a-guide-for-dwp-staff

Precisely what I will be doing with another client of mine, who was very grateful for the £12000 arrears that arrived in his account yesterday! It’s not being greedy, it’s simply trying to ensure the client receives what they should have been paid if they had been converted correctly at the right time. I am just waiting to see the decision letter and how it explains the arrears paid.

CHAC Adviser - 27 February 2018 03:39 PM

should be entitled to go even further back (in the specific case I have it would be through to 2012)?

I have a similar case, the real problem would be if there are 75,000 cases identified are we as rights workers to write for the percentage owed before 2014, say approx 60,000 letters for clients that are owed before 2014 asking for financial redress…or are some left out…will the DWP give 60,000 discretionary payments… In CHACs clients case based on the period owed, that payment will be reviewed and if looking like agree to redress, it will have to be escalated internally and referred to CReST (Complaints, Redress and Stewardship Team) who need will rereview any decision and have final say to authorise…

Which is why appeals on From the other side and the outcome of a strike out on Dan Manvilles client are important…

From the other side - 27 February 2018 04:41 PM

Precisely what I will be doing with another client of mine, who was very grateful for the £12000

As this was an award based on LH error in law, not official error, the clients are aware to spend it within the 1 year?Another reason for an appeal decision.

As this was an award based on LH error in law, not official error, the clients are aware to spend it within the 1 year?Another reason for an appeal decision.[/quote]

My take on it is that the level of arrears has been restricted due to “error in law” but the reason for the arrears is “official error” therefore the client should not need to spend it within a year. Hence the reason I wish to read the decision notice issued to client.

From the other side - 28 February 2018 10:07 AM

As this was an award based on LH error in law, not official error, the clients are aware to spend it within the 1 year?Another reason for an appeal decision
My take on it is that the level of arrears has been restricted due to “error in law” but the reason for the arrears is “official error” therefore the client should not need to spend it within a year.

Hi S Macaulay

You raise a very interesting point

The argument is surely the basis of the award

-if award - is official error
then SSA doesn’t apply,
it only applies to errors in law, so the award would be the full amount

-if award - is error in law
then SSA applies and applies from the court decision October 2014?
ie they only had a duty on conversion to consider IR because of a court decision October 2014 making a legal condition, which is why it is limited to October 2014. I believe in the original letter DWP drew attention to an extraction of the phrase ‘error in law’ in the judges decision,

otherwise October 2014 doesn’t make sense -  a judge October 2014, a duty October 2014 to consider IR.

which actually is what Daphne has pointed out the nonsense of the decision in her letter to the DWP - it was already in the DMG 2009 with an notated break down of an example of how they need to consider IR…confirming a requirement not making one

the effect is nothing in the decision makers guide is law until challenged in court…and becomes law at the point a judge confirms it,.

I would also love an explanation of the June 2013 noticeboard Rosie W was given by the presenting officer, stating it was official error, to pay to the date of conversion and the DMG to be updated…

From the other side - 28 February 2018 10:07 AM

Hence the reason I wish to read the decision notice issued to client.

Once you read the clients letter it will be very interesting to see how phrased.

I wait with anticipation!

The same point about it being official error so doesnt affect capital limits was raised by Daphne in her letter re:the DMG, so we will certainly get a definite response.

Of course it doesn’t answer the other 60000 approx clients disadvantaged…each request has to be made individually and for non payment of a statutory amount it is discretionary.

There is the current situation with Dan Manville client where something negative is happening

strike out the appeal,
Basically it relies on LH and doesn’t mention the Fife decision.

best

Anthony

Thank you all for your suggestions. Always good to have a second opinion on the next steps!

Well I have now visited my client who has received just over £12000 arrears and the letter(s) than he has received are very poor! He received two letters advising that £5000 had been paid into account and one stating that £2295.25 had been paid. It stated it covered the period 21/10/14 to 16/2/18, no further explanation! I have attached a redacted copy of one of the letters.

Obviously it states to contact them for more information but what about if you disagree with the amount they have paid! They are not normal decision letters but if there was to be one forthcoming I would have thought it would have been issued by now as the other letters were issued on 21/2/18. I will be writing asking why arrears have been restricted to 21/10/14 rather than date of conversion April 14 (ok, I know that I know the reason but would be good for them to tell the client officially why they are denying him another £1500!). I Will also ask how this windfall impacts upon his new ESA(ir) claim as he now has over £6000.

With regards to his now up and running new ESA(ir) claim he has not received a new award letter detailing his entitlement but the payment he received last week did not include the SDP. This is despite being paid arrears of SDP for last 3+ years!! Have phoned regarding that and waiting on call back!

Thanks From the other side for the detail!

Excellent, thanks again for the update - alot questions.

We all await here for DWP explaining to you what they are doing

From the other side - 06 March 2018 10:31 PM

“£12000 arrears and the letter(s) than he has received are very poor! He received two letters advising that £5000 had been paid into account and one stating that £2295.
last week did not include the SDP. This is despite being paid arrears of SDP for last 3+ years

Does that mean they missing a third payment to take it to 12,000 or they calculated themselves as £7295?
And so also a forth to be calculated as building up owing…

From the other side - 06 March 2018 10:31 PM

“ESA(ir) claim as he now has over £6000”

Are you thinking he is now in change of circumstances and not entitled?
They left it open as a trap if its change of circumstances
Even whether it is disregarded for the whole of the award period as offical error, or for one year as in error in law

From the other side - 06 March 2018 10:31 PM

“With regards to his now up and running new ESA(ir) claim he has not received a new award letter detailing his entitlement”

The award letter is going to be particular interest.

Is this going to be a case of where they do it right?
ESA CB with ESA IR Top UP (SDP)
or are they shifting him on ESA IR - as this will have implications long term for capital, and if ESA IR they will convert onto Universal Credit at some point - with the guarantee not yet promised by the DWP for UC for the missing SDP. as UC has no SDP.

From the other side - 06 March 2018 10:31 PM

I will be writing asking why arrears have been restricted to 21/10/14 rather than date of conversion April 14 (ok, I know that I know the reason but would be good for them to tell the client officially why they are denying him another £1500!).

I think ill be checking this board every day till I can see their reply.

Any update Dan Manville to strike out your clients case?

Any news Daphne to your letter about
1-official error because the UT case only stated what was already law in 2009 DMGs (with example)
2- no capital limit as official error?

We had a client who sent a ESA3 with IS10 in May 2017 for backdated, never had action till today - and instead of award they sent the client a letterless envelope, just a ESA3…

2 MARCH 2018, 10:54 AM #237
CHAC Adviser forum member Caseworker, CHAC Middlesbrough
Thank you all for your suggestions. Always good to have a second opinion on the next steps!

I agree CHAC Adviser!

Anthony

By chance talking last post about S.Maculays possible ESA IR only award, and potential to move to UC and with no transitional for SDP (i believe at moment esa CB isnt moved to UC)

“Tessa Gregory and Lucy Cadd from the law firm Leigh Day are bringing a judicial review challenge to the discontinuance of the Severe Disability Premium (SDP) and Enhanced Disability Premium (EDP) contained in legacy benefits when individuals are transferred, or ‘naturally migrated’, to Universal Credit (“UC”) without any transitional protection to cover the resulting significant shortfall to their income. We have now reached the stage of the judicial review in which we need to collate and prepare supportive evidence. It would be helpful for the court to be provided with other case studies which show the broad and varied range of situations in which individuals are caught by the UC provisions, as well as the different impact that the loss of the SDP and EDP has had on peoples’ lives.”

from Rightsnet

DWP have answered my FOI

We now have a copy the official

Generic Overview of End to End IB(IS) Reassessment

Ive atttached it below

Its 357 pages so I think the entire “ESA – migration cases – inaccurate IRESA assessments” thread are going to have to pile in to get what we need out of this.

Let the reading, extraction and posts commence!

Best

Anthony
(thanks Stuart for message reminding me my FoI)

Ill Kick off….

page 1
5. A great deal of consultation and claimant insight work has been undertaken to ensure that we
‘get it right’ for our claimants.

page 61
5. It is vital that the customer is given the option to claim ESA(IR) even though they may not
choose to do so.
In IBR cases where the customer is placed in the support group they should
be given the opportunity to claim ESA(IR), as this component entitles them to the Enhanced
Disability Premium.

6. This guidance is in addition to existing ESA guidance.

—-
UPDATE
I jumped too soon, am aware while it talks of ESA (C) it doesnt talk of IB(c) theyve withheld that….will reapproach them
Left it up incase there is something usefull as not read all 357 pages

Hi Anthony- thanks for uploading this document. Do you know when it is dated from? Would be useful to see the FOI request and response as well.

Martin.