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

Back payment/back date or not?

DDP
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The Terrence Higgins Trust

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Total Posts: 102

Joined: 7 September 2010

My client received his health questionnaire form in February 2020 when his ESA was running out. He completed and submitted the questionnaire in March before the deadline. On 28 July 2020, he received a telephone interview regarding his application. On 17 August 2020, he received a letter from the DWP dated 12 August 2020 regarding his ESA and indicating he had been moved from the work related activity group to the Support group, effective from 08 August 2020.. My client thought it was going to be backdated to February 2020 when the review started. Any advice regarding why it was not backdated from February 2020? Is this the correct decision? I will be grateful for your input. Thanks.

Best regards
Barbara Tinubu

Paul Stockton
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Epping Forest CAB

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Joined: 6 May 2014

The most likely reason it was not backdated is that DWP regard the decision to put your client in the support group as a decision by the Secretary of State on her own initiative to supercede the previous award on the basis of a medical report under regulation 26 of The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013. If that is so it takes effect only from the date of the decision (regulation 35(7)).

If your client had actually applied to be moved to the support group the new award would have been from the date of the application (regulation 35(6)). I guess DWP wouldn’t regard filling in a routine questionnaire as constituting an application.

There are a couple of arguments you might be able to make. First, whether there was in fact an application by the client depends in my view on what was actually said in the questionnaire. Secondly, you might be able to argue that the true ground for the supersession was a change of circumstances, in which case the start date is the date on which the change occurred (Schedule 1 of the regulaions). That might not work where the DWP says its decision was based on the medical assessment not on evidence of a change in circumstances even though in practice that may amount to the same thing.

DDP
forum member

The Terrence Higgins Trust

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Total Posts: 102

Joined: 7 September 2010

Thank you so much Paus17. I really appreciate your help.
Best regards.
Barbara