URGENT! ESA reinstatement in UC area

We’ve been full service UC in parts of our borough since June 2016 and the whole borough since December 16. Scores of our clients have chosen not to claim UC whilst challenging DWP decisions to stop ESA after a WCA failure. In all cases, as long as the DWP receives a copy of the Tribunal letter allowing the appeal to go ahead and an up to date sick note from the date ESA stopped, ESA has been reinstated and backdated at assessment rate pending the appeal. The majority of these clients have been winning at appeal and containing with their ESA.
Last Friday 13th January I was left a voicemail by Belfast Benefit Centre saying they couldn’t reinstate ESA anymore in a full service UC area. I arranged another call back today thinking I’d misheard and have just had a really fraught conversation with a manager who insisted that new guidelines have been issued - he couldn’t’ say when - which means that ESA can NEVER be paid in a UC area once a WCA has been failed. It doesn’t matter if UC hasn’t been claimed, ESA will not be reinstated at Tribunal letter stage, nor even if there is a win at Tribunal. The manager refused to give me any more information about this guidance.
Has anyone else had experience of this? Of major concern to us is those clients who have not claimed UC and are waiting to get the Tribunal letter and ask for ESA to be reinstated. If this is no longer possible, and they have to claim UC, what are the chances of UC being backdated? (zilch, I would have thought).

Urgent thoughts please….

I have had exactly the same scenario in December 2016.

We have been full digital service since July 2016.

I had exactly the same scenario DWP BDC called and said I could not have customers ESA reinstated in UC area as they had received a memo/guidance to this effect.

The upshot seemed to be they are being guided to point everyone to UC no matter what however I insisted on speaking to a manager asked them to quote when the ESA legislation changed as the regs still apply re ESA regardless that UC is available, after a further call back ESA was reinstated back pay assessment rate paid and appeal subsequently won in January 2017 customer still on ESA.

You just have to be prepared for battle unfortunately.

If the appeal succeeds, the tribunal will make a decision awarding ESA, not UC, and this decision becomes operative and payable.

If the DWP think that a conversion to UC should take place, they would seem to have only two options:-

1. Invite the tribunal, citing valid reasons, to award UC instead of ESA at the first-tier hearing, or
2. Make a superseding decision on a valid ground, which will then carry a new right of appeal.

Income Related ESA is ‘abolished’ in a Full Service area if a claimant makes a claim for either UC or ESA after the commencement date.

Make a claim is defined as:

2(4) Subject to paragraph (5), for the purposes of this Order–
(a) a person makes a claim for an employment and support allowance or a
jobseeker’s allowance if he or she takes any action which results in a decision on a claim being required under the Claims and Payments Regulations 1987;
and
(b) it is irrelevant that the effect of any provision of those Regulations is that,for the purposes of those Regulations, the claim is made or treated as made at a date that is earlier than the date on which that action is taken.
http://www.legislation.gov.uk/uksi/2015/634/pdfs/uksi_20150634_310815_en.pdf

Under Reg 3 of the Claims and Payments regulations 1987 no claim is required for ESA where the claimant is pursuing an appeal against a relevant decision (i.e. the first determination they do not have LCW)
http://www.legislation.gov.uk/uksi/1987/1968/pdfs/uksi_19871968_300916_en.pdf

It would be beyond belief if DWP interpret lodging an appeal as the action referred to under 2(4) above!

We’re fairly new into Full Service (November) so we haven’t had this situation in practice yet - but expect to soon. DWP had conceded that as new claim wasn’t required ESA could be paid, but then the local DWP Welfare Reform staff were told it couldn’t and we’ve been trying to pin it down ever since.

If anyone gets a copy of the guidance from DWP on this please pass it on

Thanks

Phil Cole

Just spoken to a ESA Escalation manager at Belfast Benefit Centre to ask why claimants challenging ESA WCA decision are not having their ESA reinstated once they have tribunal letter and sick note (another client refused today). He at first confirmed with me that if they haven’t made a UC claim in the meantime, there should be no problem going back onto ESA pending appeal. There had been no new regulation. He said he’d check with other managers to find out what was happening. He phoned me back to say that Belfast BC was now implementing guidance which simply hadn’t been implemented up until now. I asked for a copy of the notes - see below.  Extremely tenuous. Any thoughts other than complaint and JR - which could take months?

“As discussed today you can see at point 22 the information regarding customers being required to claim UC if they make a valid ESA appeal and live in a UC full service area.”

Disputes and Appeals Process Summary
For disputed decisions notified on or after 28 October 2013 see paragraphs 8 onwards for an overview of the process to follow and the transitional period for disputed decisions issued before this date

19. For all ‘No LCW’ decisions notified on or after 28 October 2013, ESA can still be reinstated in areas where Universal Credit has not been rolled out pending the outcome of an appeal but before an appeal can be lodged, a MR must have been carried out and the claimant must have received a MRN. During the MR period, ESA is not payable
20. Where the claimant lives in a Universal Credit Full Service geographical area the claimant can claim UC during the MR period and will remain on UC even if the ESA MR or any appeal is decided in the claimants favour.
21. ESA at the Assessment Phase rate cannot be reinstated in none UC areas, if appropriate, until the Department has received an appeal response request from HMCTS.
Queries about ESA payment pending appeal
22. Where the Department is contacted about payment of ESA pending the outcome of their appeal staff must identify if the claimant lives in a Universal Credit Full Service geographical area by inputting the post code into FIND.
Claimant lives in a UC area.
23. Direct the claimant to http://www.gov.uk/universal-credit to claim UC

I have emailed this into the stakeholders group and asked for an urgent reply - will keep you informed on anything that comes out of that.

Thanks for the info.  Can I just clarify that I understand as I have a client who has recently submitted an appeal and we were about to request ESA pending the outcome.

.....There is newish DWP guidance that all claimants living in full digital service areas can no longer claim ESA assessment pending the outcome of their appeal and that they must claim UC instead.  This guidance came out some time ago, but is only now being acted upon by Belfast BC?

Thanks.

The DWP guidance is misleading/wrong!

If your client doesn’t want to go on to UC do not put in a claim. Insist on going back to ESA highlighting that no claim is needed under reg 3 of the Claims and Payments Regs as quoted by Phil.

Just because they can claim UC doesn’t mean that it’s a good idea! Particularly if they get DLA/PIP and may be entitled to disability premiums.

See my post from 10 November with DWP UC policy response: http://www.rightsnet.org.uk/forums/viewthread/9951/. We also quoted this in December’s WRB.

This post-dates guidance quoted by Belfast.

Was advised if this not working that should be escalated with the ‘Incident Management team’ for which should be a single point of contact in each service centre.

Thanks for this, hkrishna. Re your post of Nov 10 and the “response from ESA Policy”. Who are they? How did you contact them? And did they respond to your query about how to ensure the policy works in practice?
You mention the Incident Management team for the relevant BC. Any idea what relationship they have with the ESA Escalation manager who I have been dealing with?

I’m currently dealing with a case in Live Service where the client has had UC while appealing an ESA decision.

Won ESA appeal back in October and asked for ESA to be reinstated on the basis that the ESA claim now exists again as the disallowance has been overturned.

DWP have paid the arrears of ESA but are refusing to reinstate and saying she remains on UC.  I’ve just had the argument with the Team Leader at the benefit centre who told the guidance was very clear but is checking.

Daphne/Hkrishna - would you suggest asking for it to go to ESA Escalation Manager or would you lodge a Letter Before Action?  If the latter has anyone done this yet and share a letter with me as I have not done such a thing for many years so very rusty.

I think it’s much more complex if the person has claimed UC in the interim as claiming UC abolishes irESA for that person. As she’s in a live service area in theory if she could stop UC claim she could then reclaim ESA provided she didn’t meet the gateway conditions - but there seems to be little evidence of this actually working in practice - see http://www.rightsnet.org.uk/forums/viewthread/10713/