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Would value opinions please!
Backstory is that client failed WCA (Dec 2017). Got a call telling him of this. He said he’d like to challenge the decision. As is usual, he was advised he needed to claim UC, which he duly did. WCA decision was appealed. Made claim for PIP later in Dec 2017, which was awarded at SRDL. ESA appeal subsequently allowed.
My issue is that had client been advised that he had the option to remain on ESA during appeal period, his award of PIP would have meant SDP being payable. Loss to client about £6,000
The DWP do not agree with me and neither does the ICE. So, do I proceed to Ombudsman?
ICE say it is not the role of DWP staff to advise on what benefits to claim (despite them telling him to claim UC) and that the decision letter would have pinpointed him to the Gov Website for info. Decision letter issued after he’s already claimed UC on their advice and client has learning disabilities and I do not believe the website would have dealt with the complexities of ESA appeal situations. DWP and ICE both suggest that, because UC payable (if you apply for an advance) more quickly that ESA post MR period they have done the client a favour!
In my opinion, the advice to claim UC was not wrong but it was incomplete. Client was not able to make an informed decision and, as a result, has lost out financially. Even if PIP and, therefore, SDP was not an issue, many clients may prefer to remain on ESA anyway.
All opinions welcome!
Here are two propositions which are both true:
(1) The DWP has no obligation to inform claimants about what benefits they can or can’t claim. No matter how complicated it becomes, the DWP has no legal responsibility for ensuring that claimants or potential claimants are aware of what they can or can’t claim. It is perfectly proper for a DWP call handler, when asked what benefits the claimant should or shouldn’t claim, just to say “I don’t know, its not my problem - you need to take your own advice on that”.
(2) However, if a DWP person does in fact take it upon themselves to advise the claimant about what to do or not do, then having assumed that responsibility, they are obliged to take reasonable care to ensure that the advice is accurate and they are potentially liable if the advice turns out to be inaccurate. It is not impossible that the DWP could be on the receiving end of a claim in negligence for giving inaccurate advice.
Just as I am not obliged to help my neighbour put up a shelf for her precious ornaments - but if I agree to do so and due to my shoddy workmanship the shelf falls down and the ornaments break, that is my responsibility.
The ICE response seems to get these issues muddled. As a point of fact, the DWP either did or did not advise your claimant on what to do. If they did, then the fact that they didn’t need to is irrelevant. It was incumbent on the officer either to give accurate advice or give no advice.
Whenever I deal with the DWP (or many LAs for that matter), I am always amazed at how willing they are to give off the cuff advice about what to do when they are in no position to do so. Given how risk averse they are in other matters, it is surprising that this isn’t treated as a disciplinary matter.
I completely agree with Elliot’s analysis. You should proceed to the Ombudsman via your MP. I’m surprised on the facts that ICE didn’t uphold the complaint as in her last annual report she highlighted precisely this kind of failing.
Thanks Elliot and Paul.
You’ve both bolstered my view that this situation is just plain wrong although I am now worried about Elliot’s neighbour’s ornaments!
Agree with the analysis. Not surprised at all by the ICE response. They are, to put it politely, largely somewhere between useless and incompetent.
FWIW I’ve had a previous client in a similar situation where DWP agreed in a complaint response that it was not correct to advise the client to claim UC without giving them the accompanying advice that this would prevent them from returning to ESA. That client had not missed out financially (no SDP, she was actually a bit better off due to the difference between the Support Group component in ESA and the LCWRA element in UC) but in terms of principle they accepted they had got it wrong.
What I’m not sure about is remedy. The client has lost out because they have missed an SDP that would have come from a PIP claim that they made after the initial call and claim for UC. It is clearly reasonable to expect the DWP to give accurate advice based on the client’s present circumstances. What I’m not so sure about is whether they should be expected to speculate/advise on how a client’s immediate decision might have consequences further down the line in undetermined circumstances. I haven’t had any ombudsman experience so I’ve no idea how they deal with causation.
It is a very unfortunate one as had the claims been the other way round (i.e. PIP before UC) I think the client would have got transitional protection.