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Forum Home  →  Discussion  →  Housing costs  →  Thread

ESA and service charges and late application for payment

Paul_Treloar_AgeUK
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Client currently receives income-based ESA which doesn’t include any amount for service charges they are liable for - these take the form of regular annual payments but also now there’s large bill incoming for some major works and they can’t afford these.

We advised on possibilities and our adviser helped client approach DWP to request inclusion of service charges. DWP have responded by saying that when ESA was awarded originally back in 2015, they refused to include service charges because client’s property had changed from being rented to be owner-occupied (it’s now leasehold). DWP saying that as nothing else has changed, they’re not prepared to look at 2015 decision again.

I’m thinking of telling adviser to (1) lodge any time revision on official error grounds and (2) to also request that if the revision request is refused, to seek a supersession of the 2015 decision which will in turn open up routes for MR/appeal.

The official error ground would be that whilst DWP are correct that in 2015, housing costs related to mortgages taken out whilst in receipt of MTB’s generally weren’t eligible for assistance, there doesn’t appear to be anything similar in respect of service charges. There was no reason for them not to properly consider paying the service charges on the original 2015 decision therefore.

Obviously, this would be best outcome if they do go back and revise but as there is no way to appeal a refusal to entertain the any time revision request, that’s why I’m thinking to at least have the fall back position regards the supersession request which at least might get service charges into payment from now.

Does that makes sense as a strategy or any other thoughts on anything I might have missed here? Thanks for any assistance.

Paul_Treloar_AgeUK
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I’ve just had a brain wave on this case.

Couldn’t we seek MR on official error grounds, using arguments that whilst entitlement to loans is restricted if taken out on benefits, there was no such restriction on service charges (see attached) and if this is refused, appeal rights open up using PH and SM v Secretary of State for Work and Pensions (DLA)(JSA): [2018] UKUT 404 (AAC)?

https://www.gov.uk/administrative-appeals-tribunal-decisions/ph-and-sm-v-secretary-of-state-for-work-and-pensions-dla-jsa-2018-ukut-404-aac

Judicial Summary
These cases concern the question of whether a claimant has a right of appeal where a request for mandatory reconsideration was made after the maximum period of 13 months. They decide that:

In cases where a request for mandatory reconsideration was made after the maximum period of 13 months from the original decision, the tribunal has jurisdiction to hear an appeal only in limited categories of cases (principally where the substance of the mandatory reconsideration request is official error). In other cases there is no jurisdiction, and the cases should be struck out under Rule 8(2) of the Tribunal Rules.

In cases where the tribunal has jurisdiction, then a claimant must also comply with the limitation periods in the Tribunal Rules. In cases subject to mandatory reconsideration, the appeal should be brought within one month of the date of notification of the result of mandatory reconsideration to the claimant, unless the tribunal grants an extension (the maximum period of extension being 13 months from the date of notification of the result of mandatory reconsideration).

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Elliot Kent
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Yes, I think that would work. It may be that you would want to get a copy of the original LT54 via subject access request or otherwise (perhaps your client still has a copy of it…) so that you can demonstrate the error which was made rather than relying on what they’ve told you now.

Paul_Treloar_AgeUK
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Elliot Kent - 17 November 2022 11:02 AM

Yes, I think that would work. It may be that you would want to get a copy of the original LT54 via subject access request or otherwise (perhaps your client still has a copy of it…) so that you can demonstrate the error which was made rather than relying on what they’ve told you now.

Thanks Elliot, what is the LT54 please?

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Paul_Treloar_AgeUK - 17 November 2022 11:03 AM

Thanks Elliot, what is the LT54 please?

The internal form for recording decisions.

Paul_Treloar_AgeUK
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Elliot Kent - 17 November 2022 12:55 PM
Paul_Treloar_AgeUK - 17 November 2022 11:03 AM

Thanks Elliot, what is the LT54 please?

The internal form for recording decisions.

Thank you.