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Backdating income-related ESA
This is a little bit similar to the query about backdating SDP. I have a couple of clients, long-term Contribution-based ESA, whose entitlement to Income based ESA (usually because of EDP) only surfaced when they queried why they weren’t receiving the Cost of Living Payments. We’ve completed the ESA3 forms and sent them off but I am wondering whether we can argue for backdating. Obviously the DWP couldn’t have known for sure that they were entitled to an income-based benefit and they might even have been sent ESA3 forms at an earlier point and ignored them. However, these clients. who are by definition, severely ill, have been missing out for years. Would there be any argument for backdating?
Ruth
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Welfare rights - Greenwich Council
Total Posts: 227
Joined: 23 November 2018
Hi Ruth
I would expect it to be backdated the whole way.
Only just read this, Rebecca. Thanks a lot. These clients have not been back in touch but I will try to chase them up now.
Ruth
Hi Rebecca, I am picking up this old thread because I still pursuing the case of one client who would have been entitled to Income-based ESA on top of her contribution-based ESA from the date her partner left in 2019. (Because of the Enhanced Disability Premium). She had no idea she should have informed the DWP and did not do so until she came to us in November 2022. I have had a refusal for any backdating beyond the date we contacted the DWP to ask for an ESA3 form, with the decision-maker citing the SS&CS;(DA) Regs, regs 7 and 8 to justify a refusal. There would have been no reason for the DWP to know that she and her partner had separated. You said that you would have expected it to be backdated fully - is there any legislation I can rely on to challenge this decision?
Thanks a lot
Ruth
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Citizens Advice Bridport & District
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If the EDP is connected to an award of PIP i.e. client awarded PIP EDL and PIP awarded after the CESA was awarded. The following may be arguable.
Then Reg 6(2)(e) and reg7(7) SS (D&A) regs 1999 counterintuitive because its a supersession but works as any time revision subject to the above.
https://www.legislation.gov.uk/uksi/1999/991/regulation/6 and https://www.legislation.gov.uk/uksi/1999/991/regulation/7
Edited because of problem with a link
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Welfare rights adviser - Plumstead Community Law Centre
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Was the former partner working >24hrs per week?
That’s something to think about. The EDP is because she is in the support group - her PIP award is Standard rate. But I will have a look at the regulations again - even if it doesn’t work in this case, it should be useful in the future.
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Welfare rights adviser - Plumstead Community Law Centre
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I asked about the partner working 24hrs per week because that would disqualify her from income based ESA ( Reg 42 ESA Regs 2008 and Sch 1 paragraph 6(f) Welfare Reform Act 2007.)
That said there could be mileage in JR/1249/2018 DS v SSWP [2018] UKUT 0270 (AAC) if the former partner was not in full time work (24hrs pw) because the 3JP confirmed that ESA is a single benefit and the DWP needed to consider the EDP in all support group cases.
If the DWP have not done that that there will be grounds for revision for official error
Once that is established other determinations embodied in the decision (including the SDP ) can be revisited (see e.g Secretary of State for Work and Pensions v AM (IS) [2010] UKUT 428 (AAC))
[ Edited: 22 Jun 2023 at 05:21 pm by Stainsby ]File Attachments
- JR_1249_2018_DS_v_SSWP_ESA_Single_Benefit_Enhanced_Disability_Premium.pdf (File Size: 425KB - Downloads: 317)
- CIS_0384_2010_Secretary_of_State_for_Work_and_Pensions_v_AM_(IS)_[2010]_UKUT_428_(AAC)_Old_Determinations_Can_be_Revisited_on_Subsequent_Appeal_Credibility_Corroboration.doc (File Size: 89KB - Downloads: 311)
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Welfare Rights Team Inverness Citizens Advice
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Hi Ruth
The extent of backdating depends on the reason and timing of the entitlement to i-rESA. In my case, it was a change of circumstances (client and partner separating) which client didn’t report at the time (5 years ago).
My client will be refused backdating, because the change of circs needed to have been reported within 13 months of it happening.
Specifically: If a change which is advantageous to the claimant is notified within one month of it happening (or 13 months if there is good reason for the delay) then the decision can be effective from the date of the change in circumstances.
However, if not reported until later than this, it is only effective from the date reported.
See Reg 7(2)(a) and (b) of The Social Security and Child Support (Decisions and Appeals) Regulations 1999 (legislation.gov.uk)
Hope this helps.
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Welfare rights adviser - Plumstead Community Law Centre
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Soapkate - 05 July 2023 04:44 PMHi Ruth
The extent of backdating depends on the reason and timing of the entitlement to i-rESA. In my case, it was a change of circumstances (client and partner separating) which client didn’t report at the time (5 years ago).
My client will be refused backdating, because the change of circs needed to have been reported within 13 months of it happening.
Specifically: If a change which is advantageous to the claimant is notified within one month of it happening (or 13 months if there is good reason for the delay) then the decision can be effective from the date of the change in circumstances.
However, if not reported until later than this, it is only effective from the date reported.See Reg 7(2)(a) and (b) of The Social Security and Child Support (Decisions and Appeals) Regulations 1999 (legislation.gov.uk)
Hope this helps.
However if the DWP are required to carry out the so called LEAP exercise following JR/1249/2018 DS v SSWP [2018] UKUT 0270 (AAC) we are talking of revision not supersession and Reg 7(2)(a) and (b) will be of no consequence