Can IRESA be backdated based on successful CESA appeal?

I have a client who was in receipt of Incapacity Benefit and he failed the conversion to Employment and Support Allowance. He submitted an appeal and then we assisted him. The tribunal allowed the appeal, placing the client in the support component.

Based on the above the client has been paid arrears of Employment and Support Allowance, which include the support component from the conversion date. However, the client has no other Income Support (aside form Disability Living Allowance) and so he could claim income related Employment and Support Allowance to be paid the enhanced disability premium.

My question is that had he been converted when they assessed his claim initially he could have when placed in the support component claimed the income related element. Can he now put in a claim to the income related element and seek that it is backdated, I suppose along the lines of seeking more than three months backdating based on a qualifying benefit being awarded by The Tribunal Service?

If he can’t then it would seem odd that although he has won his appeal that he has potentially lost out and it would also mean that he would have had to put a claim into the income related element when he had to appeal, as protective claim and that simply seems wrong.

As contribution-based ESA and income-related ESA are varieties of the same benefit, he should not have to make a new claim for the premium to be added. As he was in receipt of the qualifying benefit (DLA) at the conversion date, arrears of the premium should be paid back to this date.  You should request that they revise (?) their decision to allow for the EDP to be paid back to the date of conversion.

The tribunal decision deals not just with whether the claimant has LCW but whether they are entitled to ESA and, if so, how much including any premiums.  In practice, it’s taken on trust by the tribunal that the DWP will pay the correct amount of award. 

A tribunal decision cannot be revised.  I would be looking to return to the same FtT if arrears of the EDP are not paid from the conversion date in the form of IRESA despite there being no prior “existing award” of IS.

Edit: the grounds for paying IRESA from the start are those which Domino gives.

Excellent, thanks to both of you for the time and replies.

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Similar(ish) situation here.

Client is in a care home and has no income bar her DLA. She claimed ESA last year on a paper form, and claim was treated as one for Contributory ESA (i.e. the parts of the claim form relating to income/savings were not filled in).

After a great deal of toing and froing, complications and errors, DWP have finally placed client in the support group, and appear to have treated this decision as having been made in the 13th week of the claim.

Appointee has now been sent ESA3 to get the EDP added to the benefit. Is it possible to get this backdated to the date client went into SG, even though this is the first time we have provided details of her income/savings?

Yes. I gather from previous threads on this topic that it might assist the DWP if you can avoid referring to “backdating”. Income-related ESA is not a separate benefit to contributory ESA, it is a different element of the same benefit. “Backdating” is asking for benefit to be paid prior to date of claim, which would generally conjure up the hurdle of ‘good cause’. In this case you are merely demonstrating entitlement to arrears of ESA which should have been paid during the lifetime of the claim.

Craven CAB is correct.

This is becoming an issue, we have had to go to appeal twice (and been successful) regarding this issue.

In my case, it was an SDP which needed to awarded. As it was only conts based ESA in payment they sent out a ESA claim pack to claim IR ESA and as such the DWP decided that as this was a ‘new claim’ the SDP could only be backdated 3 months. This is nonsense however and thankfully the tribunal agreed.

Many are going to miss out on payments if they dont seek representation though.

I get the feeling this is a fairly new issue, in my office we think they used to ‘backdate’ fully with no issues.

The issue does not appear to arise if someone claims ESA conts and IR st the same time and is awarded conts - suggesting that all the DWP needs is the info to ensure IR can be awarded.

Its basically an attempt to not pay out money due. Which comes as a surprise to all!