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ESA fail and a can of worms
I advised client to claim UC in September after she accidentally applied for a tax-free childcare account which ended her CTC. She was getting IR-ESA(SG) and full HB, but with no PIP, so should have been quite a bit better off with the LCWRA.
Cl contacted me again when she got her first payment notification on UC. It was about £560 less than I’d calculated. When we looked at it, there was no LCWRA, and there was a deduction for an ESA payment she’d received two weeks into the AP.
We spoke to UC and pointed out that they couldn’t very well deduct for ESA payments made after the start of the claim and refuse to acknowledge that the claimant was getting ESA so should go straight to LCWRA. At this point they said that the claimant missed a WCA last year so she didn’t have LCWRA.
UC initially refused to accept an MR request because they said there had been no decision made. Then they agreed they would look at the decision again and if they decided against the claimant we would be able to ask for an MR at that point. Then they suggested that the claimant contact ESA and get them to tell UC what was going on. She did this last week and was told that a) UC should have contacted ESA themselves, and b) yes, she was getting ESA (SG). They will send out a letter.
This week she was told that UC have carried out an MR and decided she’s not entitled to LCWRA. There’s no MRN to be seen on the account. We’ve asked them to put it on.
We called ESA again yesterday. It seems this was a clerical claim, and it stopped and went to credits-only when she claimed UC (?). There was a missed WCA last summer which they accepted she had good cause for missing. But there was another missed WCA in September and a no LCW decision was made in October. She says she wasn’t aware of the second WCA, and has never heard anything about the decision (although, to be honest, she’s is not good at dealing with her post). She carried on being paid, and the DWP never notified our HB dept of the change. Putting her to credits-only would require LCW, yes?
Reg 19 of the UC(TP) Regs 2014 says she has to have been “entitled to” ESA (SG) to go on to LCWRA. I am worried that it is looking as though she wasn’t entitled to ESA even though she was receiving it.
Does anybody have any ideas? We’ll appeal against the decision to end LCW. But is there any argument that she was still entitled to ESA - perhaps based on a question about whether the decision was ever completed?
She was entitled to the ESA until the decision awarded it is properly superseded. That hasn’t happened yet.
If JCP were tardy about implementing the WCA FTA she should not be penalised for that; especially if she might have had good cause.
I’ve had similar problems with them refusing to reconsider decisions and found a credible threat of JR soon sorted it out.
Thanks Dan. That’s certainly what I was hoping to hear, but do you have any authority or legislation to say that entitlement could continue like this? The only thing I could think of was Sch 1 of the D&A Regs, but it’s not helping at all as it just says when a supersession “takes effect”.
My worry is that she has simply been overpaid ESA. To put it another way; the supersession decision was made in October 2018, but they carried on paying her even though she wasn’t entitled to it.
Also, is there anything stopping UC from accepting that she was entitled to ESA (SG) when the UC claim started, but then superseding the LCWRA on the basis of the WCA FTA (even though it was over a year ago)?
I think it all turns on what happened last October.
If, in fact, a valid entitlement decision was not made then - regardless of the merits or demerits of your client’s case -her “entitlement” continues through to the point of the UC claim and LCWRA is payable.
However if a valid entitlement decision was made and DWP administratively just forgot to stop paying her, then LCWRA is probably not payable. “Entitled” very probably means “lawfully entitled” just as “payable” typically means “lawfully payable”. See JF v SSWP & DB (CSM) [2013] UKUT 209 (AAC); [2014] AACR 3 and compare SB v HMRC [2015] UKUT 286 (AAC) on the difference of meaning where “in receipt of” is used.
That said, I don’t see why you couldn’t argue, on appeal, that your client was in receipt of ESA at the date of the claim and so was prima facie entitled and it is for the DWP to make out any case to the contrary.
Also, you may still have a few days to MR the apparent decision so perhaps worth getting on that.
We missed the 13 months by three days. But I’m going to proceed on the basis that she wasn’t notified of the decision or of her appeal rights, so the clock isn’t ticking yet. I hope a tribunal will agree that on the balance of probabilities no decision letter was sent out; seeing as no other steps were taken to end the award, or to notify the HB authority about the decision.
I can’t help thinking it looks as though a valid decision was made - the fact that it was a clerical claim probably has something to do with the subsequent administrative failure. I agree there’s a prima facie case that there was entitlement, but I fear it would be relatively easy for the DWP to show that a decision to end LCW was properly made, but not acted on (seeing as that’s what we’ve now been told by ESA).
And what do you think about my other point? Is there anything stopping UC from accepting that there was ESA entitlement at the start of the UC claim, so Reg 19 applies, but then making a decision that there is no longer any LCWRA because of the WCA FTA last September?
And what do you think about my other point? Is there anything stopping UC from accepting that there was ESA entitlement at the start of the UC claim, so Reg 19 applies, but then making a decision that there is no longer any LCWRA because of the WCA FTA last September?
I wouldn’t worry too much - I think it would both be difficult administratively for DWP to wrap their heads round this and there is a legal argument over whether a failure to comply with a requirement under the ESA regs could then be grounds for a decision under the UC regs.