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

ESA – migration cases – inaccurate IRESA assessments?

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Andrew Dutton
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The BDA are also looking in to this. I’ve written to them, as NHS Business Services had a letter from me in July and have never replied. Here’s hoping.

Dan_Manville
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Following one of these up just now (migration was 2012…) and the adviser told me there’s been an amendment to restrict backdating to October 2014.

Now I don’t keep a very close eye on minor amendments like that but I thought I’d have heard something...

Andrew Dutton
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I haven’t heard of it, but that doesn’t mean it ain’t so….but it would be mean to say the least.

Positive response from the BDA, things are looking more hopeful in that sense anyway.

From the other side
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Dan Manville - 30 October 2017 12:00 PM

Following one of these up just now (migration was 2012…) and the adviser told me there’s been an amendment to restrict backdating to October 2014.

Now I don’t keep a very close eye on minor amendments like that but I thought I’d have heard something...

Well I believe that this amendment re backdating could be linked to UT case that I have due to be heard on 6/12/17. I am looking for backdate earlier in 2014, DWP Legal Department offered to pay from October 2014 as they believe that due to decision LH v SSWP UKUT 480(AAC) this identified the error in law re IB/ESA migration and therefore can apply section 27 of SS Act 1998. Client did not accept the offer.

stevenmcavoy
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in my case (dwp requested sor but no move after that yet) the tribunal accepted doing the esa decision and issuing an “invitation” to claim esa was an error of law.

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stevenmcavoy - 30 October 2017 01:48 PM

in my case (dwp requested sor but no move after that yet) the tribunal accepted doing the esa decision and issuing an “invitation” to claim esa was an error of law.

Which is exactly how most other Tribunals have considered things! However DWP are saying that it isn’t official error but error in law and that the error in law only became apparent after the LH decision therefore trying to restrict the amount of arrears payable!!

Dan_Manville
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From the other side - 30 October 2017 12:56 PM
Dan Manville - 30 October 2017 12:00 PM

Following one of these up just now (migration was 2012…) and the adviser told me there’s been an amendment to restrict backdating to October 2014.

Now I don’t keep a very close eye on minor amendments like that but I thought I’d have heard something...

Well I believe that this amendment re backdating could be linked to UT case that I have due to be heard on 6/12/17. I am looking for backdate earlier in 2014, DWP Legal Department offered to pay from October 2014 as they believe that due to decision LH v SSWP UKUT 480(AAC) this identified the error in law re IB/ESA migration and therefore can apply section 27 of SS Act 1998. Client did not accept the offer.

Have you got the full citation for LH? Or a copy of the decision? I cannae find it on the new AAC index or bailii.

Ta

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LH –v- SSWP [(ESA) [2014] UKUT 0480 (AAC) as quoted in DJ v SSWP [2015] UKUT 342 (AAC)

Elliot Kent
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Dan_Manville
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Elliot Kent - 31 October 2017 10:03 AM

Its here, reported as [2015] AACR 14 - http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4349

 

Oh it’s that one!

Thanks

Edit; it’s a bit naughty trying to use S27 SSA to limit arrears on the basis of that; the true error is their failing to issue ESA3s on conversion. I can see an appeal on the horizon if they do!

This government reaches new lows!

[ Edited: 31 Oct 2017 at 10:32 am by Dan_Manville ]
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Dan Manville - 31 October 2017 10:30 AM
Elliot Kent - 31 October 2017 10:03 AM

Its here, reported as [2015] AACR 14 - http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4349

 

Oh it’s that one!

Thanks

Edit; it’s a bit naughty trying to use S27 SSA to limit arrears on the basis of that; the true error is their failing to issue ESA3s on conversion. I can see an appeal on the horizon if they do!

This government reaches new lows!

Hence the reason that the client has not accepted the DWP offer to pay arrears from Oct 14 and UT case will make definitive decision on whether their argument holds water! 

I have just met with another client in the same situation with conversion date prior to Oct 2014,so putting in the ESA3,  I will be interested in how that is treated!

flair
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I had an interesting call this morning chasing up one of these cases going back to 2012/13. I had raised this in August this year and still waiting (should add all previous cases have been paid by DWP back to correct date - but usually after a few months of chasing up).
I was told by Contact Centre that the DWP are now carrying out a Special Exercise to deal with these cases and this started in August - they have been told to advise that the cases are being looked at but no timescale can be given for sorting the backdating. As I had further questions she then gave me a phone no. for the team in Oldham who are carrying this out, however when I phoned them I was told they shouldn’t have given me this number, and wouldn’t divulge any details of the ‘Special Exercise’ and my client wasn’t part of this.

On an earlier case which only came to light due to the NHS Penalty being received, NHS overpayment team were quite helpful and put recovery on hold until DWP sorted out the IRESA back to correct date.

Greg

Owen Stevens
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Interesting! Thanks Greg.  Would be interested to hear more about this special exercise if anyone else has any details.

We’ve recently been carrying out an exercise to identify these cases recently and haven’t been having problems getting backdating to 2012 so was concerned to read of that above.  We’ve identified about 20 cases so far and lots more to come but would be fantastic if DWP sort this out themselves at their end.

Daphne
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NAWRA wrote to Damian Green about this back in March - http://www.nawra.org.uk/index.php/ib-and-esa-conversion-letter-to-damien-green-mp/ - and then again to David Gauke in July - http://www.nawra.org.uk/index.php/letter-to-secretary-of-state-for-work-and-pensions-about-income-related-esa/ - asking them to do a trawl of cases to pick them up.

You will see that the reply we got said they are carrying out investigations - I’m guessing this special exercise might be something to do with that?

Owen Stevens
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Yes, must be!  Fantastic to get confirmation that they’re looking into it, I’m always so flabbergasted when they pay attention to what welfs have to say!