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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

ESA income related backdate

stevenmcavoy
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have an appeal coming up on this so thoughts welcome.

client on ib only.  migrated to ESA and placed into the support group. award converted to conts based only esa. DWP submission papers say on the date migration decision was made a letter was issued inviting appointee to “claim” income related ESA. they say no response so no income related added until i spoke to client (several years later) and done the ESA3 process.

there is no copy of the offer to “claim” income related ESA nor the actual decision to convert in the papers so i can see the form of neither.

ive had a look at the caselaw establishing ESA is 1 benefit but im trying to guard against a decision that “client didnt respond to invite to claim income related so no grounds to review” decision.

There is no indication an ESA3 was sent, it only says letter. appointee says they didnt receive anything at all as otherwise they would have responded (which im inclined to believe given how many of these cases i have seen). any thoughts on the potential contributed to the error route i need to be aware of i potentially havent thought of yet?

my initial thinking is to argue that 1, he (appointee) didnt get any such letter or otherwise he would have responded, the fact they reference “claim” in the papers still shows a fundamental misunderstanding of what was happening so shows official error, there doesn’t appear to be a decision saying no entitlement to to income related which if its one benefit does there have to be one? (early days on that one and not sure how viable it is).

MickD
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There does not have to be a claim made for ESA on conversion from a legacy benefit.

Welfare Reform Act 2007:

(2) Regulations under sub-paragraph (1)(a) may, in particular—
(a) make provision for conversion of an existing award—
(i) on application, in accordance with the regulations, by the
person entitled to the award, or
(ii) without application;

And the DMG:

45355 No claim to ESA is required when the claimant is entitled to an existing award1
which is subject to conversion2
See DMG 45204 for the meaning of existing award.
1 WR Act 07, Sch 4 , para 11; 2 ESA (TP, HB & CTB)(EA)(No. 2) Regs, Sch 2, para 18(b);
SS (C&P) Regs, reg 3(k)

The SoS is stating that no claim for irESA has been received.  No claim was required.  If the SoS had said that the person had not responded to a request for information (say, regarding other income or capital) in order to decide how much, if any, irESA is payable that may be a different matter.  The SoS did not say this.

stevenmcavoy
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MickD - 25 August 2017 01:46 PM

There does not have to be a claim made for ESA on conversion from a legacy benefit.

Welfare Reform Act 2007:

(2) Regulations under sub-paragraph (1)(a) may, in particular—
(a) make provision for conversion of an existing award—
(i) on application, in accordance with the regulations, by the
person entitled to the award, or
(ii) without application;

And the DMG:

45355 No claim to ESA is required when the claimant is entitled to an existing award1
which is subject to conversion2
See DMG 45204 for the meaning of existing award.
1 WR Act 07, Sch 4 , para 11; 2 ESA (TP, HB & CTB)(EA)(No. 2) Regs, Sch 2, para 18(b);
SS (C&P) Regs, reg 3(k)

The SoS is stating that no claim for irESA has been received.  No claim was required.  If the SoS had said that the person had not responded to a request for information (say, regarding other income or capital) in order to decide how much, if any, irESA is payable that may be a different matter.  The SoS did not say this.

despite their confused terminology this is their argument.  this letter asking the appointee to “claim” income related wasnt responded to.  appointee states he never got one or he would have responded (no copy in file).

From the other side
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Ask when the original decision letter re ESA was issued and ask when the invite to claim ESA (IR) was issued ( I bet they are on the same day!).  A full determination should have been made before issue of any award letter.

I have had similar cases paid without any problem by DWP but equally I have had a current one that was refused by DWP and went to FtT and lost! Successful in request for UT and have just had letter from DWP Legal Department acknowledging that arrears should have been paid because the conversion decision was made without considering whether the claimant qualified for IR ESA , therefore that decision was erroneous in law. They refer to LH v SSWP (ESA) [2014] UKUT 480 (AAC)

Happy to pass on correspondence suitable redacted! 

stevenmcavoy
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From the other side - 25 August 2017 02:32 PM

Ask when the original decision letter re ESA was issued and ask when the invite to claim ESA (IR) was issued ( I bet they are on the same day!).  A full determination should have been made before issue of any award letter.

I have had similar cases paid without any problem by DWP but equally I have had a current one that was refused by DWP and went to FtT and lost! Successful in request for UT and have just had letter from DWP Legal Department acknowledging that arrears should have been paid because the conversion decision was made without considering whether the claimant qualified for IR ESA , therefore that decision was erroneous in law. They refer to LH v SSWP (ESA) [2014] UKUT 480 (AAC)

Happy to pass on correspondence suitable redacted! 

they are the same day and that was another thought that i had. how could they determine the amount to a single benefit without asking for that information first.  its a rather confused decision making process as there is a decision re LCFW then potentially not an immediate entitlement decision so is it acceptable in an administrative sense for the DWP to:

1.  determine the person has LCFW
2. decided conts based entitlement but alonside that
3. investigate if a further decision might be needed to also include income related

otherwise could be risk ib to ESA clients not getting payment for a period until ir entitlement is decided on?

FerhanaBhogadia
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From the other side - 25 August 2017 02:32 PM

Ask when the original decision letter re ESA was issued and ask when the invite to claim ESA (IR) was issued ( I bet they are on the same day!).  A full determination should have been made before issue of any award letter.

I have had similar cases paid without any problem by DWP but equally I have had a current one that was refused by DWP and went to FtT and lost! Successful in request for UT and have just had letter from DWP Legal Department acknowledging that arrears should have been paid because the conversion decision was made without considering whether the claimant qualified for IR ESA , therefore that decision was erroneous in law. They refer to LH v SSWP (ESA) [2014] UKUT 480 (AAC)

Happy to pass on correspondence suitable redacted! 

Please could I have a copy?

Interesting because: my client converted to CB-ESA in 2011, I completed an ESA3 few months ago, requesting backdate of EDP to 2011 as the premium was never awarded, citing DJ v SSWP [2015] UKUT 0342 (AAC) its one benefit etc. Awaiting decision as they are looking into SDP also, however I was told by a staff member in Oldham (where all these cases are being processed), that they have had ‘guidance’ to limit backdated arrears of IR-ESA to 21/10/2014 because of section 27 Social Security Act 1998 and the case of LH v SSWP [2015] AACR 14.

The case citation is wrong - so I’ve not been able to find it - maybe its the same one DWP referred in your case (albeit they conceded your case)?

S.27 SSA 1998 seems to be the anti-test case rule so I’m not sure if its relevant until I read the case.

Look forward to hearing from you.

 

From the other side
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FerhanaBhogadia - 03 November 2017 11:29 AM
From the other side - 25 August 2017 02:32 PM

Ask when the original decision letter re ESA was issued and ask when the invite to claim ESA (IR) was issued ( I bet they are on the same day!).  A full determination should have been made before issue of any award letter.

I have had similar cases paid without any problem by DWP but equally I have had a current one that was refused by DWP and went to FtT and lost! Successful in request for UT and have just had letter from DWP Legal Department acknowledging that arrears should have been paid because the conversion decision was made without considering whether the claimant qualified for IR ESA , therefore that decision was erroneous in law. They refer to LH v SSWP (ESA) [2014] UKUT 480 (AAC)

Happy to pass on correspondence suitable redacted! 

Please could I have a copy?

Interesting because: my client converted to CB-ESA in 2011, I completed an ESA3 few months ago, requesting backdate of EDP to 2011 as the premium was never awarded, citing DJ v SSWP [2015] UKUT 0342 (AAC) its one benefit etc. Awaiting decision as they are looking into SDP also, however I was told by a staff member in Oldham (where all these cases are being processed), that they have had ‘guidance’ to limit backdated arrears of IR-ESA to 21/10/2014 because of section 27 Social Security Act 1998 and the case of LH v SSWP [2015] AACR 14.

The case citation is wrong - so I’ve not been able to find it - maybe its the same one DWP referred in your case (albeit they conceded your case)?

S.27 SSA 1998 seems to be the anti-test case rule so I’m not sure if its relevant until I read the case.

Look forward to hearing from you.

Whether the DWP can limit arrears to 21/10/14 due to LH v SSWP case will probably be determined at UT hearing that I have on 6/12/17 as this is the basis of DWP legal argument.

Allan Ramsay
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From the other side - 03 November 2017 02:34 PM
FerhanaBhogadia - 03 November 2017 11:29 AM
From the other side - 25 August 2017 02:32 PM

Ask when the original decision letter re ESA was issued and ask when the invite to claim ESA (IR) was issued ( I bet they are on the same day!).  A full determination should have been made before issue of any award letter.

I have had similar cases paid without any problem by DWP but equally I have had a current one that was refused by DWP and went to FtT and lost! Successful in request for UT and have just had letter from DWP Legal Department acknowledging that arrears should have been paid because the conversion decision was made without considering whether the claimant qualified for IR ESA , therefore that decision was erroneous in law. They refer to LH v SSWP (ESA) [2014] UKUT 480 (AAC)

Happy to pass on correspondence suitable redacted! 

Please could I have a copy?

Interesting because: my client converted to CB-ESA in 2011, I completed an ESA3 few months ago, requesting backdate of EDP to 2011 as the premium was never awarded, citing DJ v SSWP [2015] UKUT 0342 (AAC) its one benefit etc. Awaiting decision as they are looking into SDP also, however I was told by a staff member in Oldham (where all these cases are being processed), that they have had ‘guidance’ to limit backdated arrears of IR-ESA to 21/10/2014 because of section 27 Social Security Act 1998 and the case of LH v SSWP [2015] AACR 14.

The case citation is wrong - so I’ve not been able to find it - maybe its the same one DWP referred in your case (albeit they conceded your case)?

S.27 SSA 1998 seems to be the anti-test case rule so I’m not sure if its relevant until I read the case.

Look forward to hearing from you.

Whether the DWP can limit arrears to 21/10/14 due to LH v SSWP case will probably be determined at UT hearing that I have on 6/12/17 as this is the basis of DWP legal argument.


Hi

I have a similar case where the DWP have limited payment to 21.10.14. Here is what they said….

On 21 October 2014 the Department became legally obliged to “invite” a claim to ESA, Income Related, when a customer was converted from Incapacity Benefit to ESA.  As Mr ******‘s claim was converted on 20 September 2012 this requirement was not applicable.  Section 27 of the Social Security Act 1998 puts a time limit on how arrears of benefit are administered.  By law, we are therefore unable to pay for any period before 21 October 2014.

I’d be grateful if you can let us know how your UT case goes.

Thanks

Allan

Bradley J
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From the other side - 03 November 2017 02:34 PM
FerhanaBhogadia - 03 November 2017 11:29 AM
From the other side - 25 August 2017 02:32 PM

Ask when the original decision letter re ESA was issued and ask when the invite to claim ESA (IR) was issued ( I bet they are on the same day!).  A full determination should have been made before issue of any award letter.

I have had similar cases paid without any problem by DWP but equally I have had a current one that was refused by DWP and went to FtT and lost! Successful in request for UT and have just had letter from DWP Legal Department acknowledging that arrears should have been paid because the conversion decision was made without considering whether the claimant qualified for IR ESA , therefore that decision was erroneous in law. They refer to LH v SSWP (ESA) [2014] UKUT 480 (AAC)

Happy to pass on correspondence suitable redacted! 

Please could I have a copy?

Interesting because: my client converted to CB-ESA in 2011, I completed an ESA3 few months ago, requesting backdate of EDP to 2011 as the premium was never awarded, citing DJ v SSWP [2015] UKUT 0342 (AAC) its one benefit etc. Awaiting decision as they are looking into SDP also, however I was told by a staff member in Oldham (where all these cases are being processed), that they have had ‘guidance’ to limit backdated arrears of IR-ESA to 21/10/2014 because of section 27 Social Security Act 1998 and the case of LH v SSWP [2015] AACR 14.

The case citation is wrong - so I’ve not been able to find it - maybe its the same one DWP referred in your case (albeit they conceded your case)?

S.27 SSA 1998 seems to be the anti-test case rule so I’m not sure if its relevant until I read the case.

Look forward to hearing from you.

Whether the DWP can limit arrears to 21/10/14 due to LH v SSWP case will probably be determined at UT hearing that I have on 6/12/17 as this is the basis of DWP legal argument.


Hi ‘From the other side’, wondering if you had an outcome from the UT on this?

Daphne
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The decision is here - https://www.rightsnet.org.uk/forums/viewthread/5928/P210/#57752

Didn’t go well I’m afraid - but possibility that they are appealing