Advice on getting a c-only claim changed to ir

My client lacks capacity and his deputy (mother) claimed ESA for him in August 2015 requesting backdating to May. The claim was made over the phone and was apparently C only despite him having no other income. Following a year of complaints, I’ve managed to get it backdated to January 2016 when they said she contacted them regarding a claim to IR. No mention that the claim was c only in the docs obtained. I asked for a copy of the phone call but that had been destroyed.

Despite numerous complaints, I cannot get them to backdate it to May 2015. The complaint respondent advised me to ask for a reconsideration as ESA had refused to look at the decision again (despite me sending caselaw about ESA being one benefit). I explained that the decision was more than 13 months old but she insisted I could request an MR of a later decision (at this point I was beginning to get a headache from constantly banging my head on my desk). Surprise surprise the MR was refused as the original decision was more than 13 months old. They are still refusing to look at the decision again despite the caselaw.

Can anyone recommend a good course of action?

trip to tribunal…...

It is difficult to see a straightforward solution.  DWP’s position presumably would be that the original decision was made in ignorance of the facts as a result of the claimant’s failure to mention anything to do with income and capital - DWP reasonably considered c-based only and there was no official error involved.  That means any time revision is out of the question (I am perhaps being generous to DWP in attributing that level of understanding to them, but I think it’s an arguable position).  Now your client would disagree: failure to ask pertinent questions is an error which is amenable to any-time revision, but the trouble is that you cannot force or escalate the issue without JR - if the original decision is not challenged within 13 months the Tribunal route is closed off (DWP are quite correct though that any superseding decision they might have made more recently can be MR’d and if necessary appealed.  If claimant is in support group there will have been an uprating in April 2017, for example, and that I believe requires a new entitlement decision).

Is there any way to get this successfully dealt with by a Tribunal?  The UT panel that looked at out-of-time MRs was not directly concerned with MR outside the absolute 13 month limit, but they hinted that their reasoning might logically mean that the rejection of a >13m MR has the effect of resurrecting the right to appeal.  Your case could test that, but it would have to get to UT first.  You could appeal the rejection of the late MR, Tribunal will probably decline jurisdiction, then you take it to UT.  As it concerns a closed past period, at least things aren’t getting any worse for the client.

Thank you for the reply.

Although the MR request stated that I wanted them to look at the decision dated 15/11/16, the file was returned by the dispute resolution team stating that the MR relates to a decision dated 18/08/15 and therefore out of time. Their argument appears to be that the superseding decision of 15/11/16 relates to the IR claim from January 16 and not the conts based application from August 15.

I may appeal the refusal of the MR as you suggested.

if you done an ESA3 then cant this be treated as an application to review/superscede and then that decision brings appeal rights.

at appeal you can argue the decision maker (or tribunal standing in their shoes) could review the original decision if there was an official error in not awarding income related at that time?