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

ESA – migration cases – inaccurate IRESA assessments?

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Daphne
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I’m sure DWP wouldn’t have done it off their own initiative so it’s welcome if they are doing it as a result of pressure from NAWRA and others.

They’ve said they’ll update NAWRA when ‘investigations’ are complete so I’ll update here when we hear as well of course as on the NAWRA website

FerhanaBhogadia
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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.

Hi
I’ve just today posted a comment squarely in relation to this issue at the thread:
https://www.rightsnet.org.uk/forums/viewthread/11706/

Maybe admin may wish to move it here instead?

Anyway please do let me know when you get an outcome of your UT hearing as it will squarely impact on my client. Good luck!
Though I really cannot see what the basis of the DWP argument is.

flair
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Thanks Daphne - I look forward to the outcomes when you hear them.

I would be very surprised and disappointed if the the anti-test case rule applies in these cases.

The decision notices issued on conversion indicate an Income Related assessment had been done, and quote the wrong amount for someone in the Support Group.

Due to this ‘Official Error’ they then state your Income Related amount would have been X amount, however because you are entitled to Conts based ESA you will get this instead.
Why would anyone then contact them to see about claiming IRESA when they have been told wrongly it is the same amount?

Also if they are trying to say you never claimed IR ESA in the first place, then why does the decision notices state you would have been entitled to it if not on Conts?

flair
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After going through Escalation route this morning following no call back. I was advised my case is being dealt with by Oldham despite them denying this last week. I was also told there is no timescale for dealing with these cases - it is now 3 months. I realise her arrears going back to 2013 may take a bit more time, however they won’t even correct her current award which is more than £70 per week short as now also entitled to SDP from July this year. They couldn’t give me any more info and suggested going through Contact Centre again!
I suspect I’ll need to raise a formal complaint and then raise with local MP to see if we can get any further.

Andyp5 Citizens Advice Bridport & District
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Daphne - 03 November 2017 12:18 PM

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?

One of our client’s has been contacted by phone and post from DWP office in Oldham, sent a ESA3 (IBR) 08/17 form issued Sept 2017 advising ‘You were getting Incapacity Benefit which was replaced with contribution-based ESA’  with a box for the date of migration completed on client’s behalf with a date in Oct 2012.

So may be Damian Green’s special exercise / investigation etc etc

Have scanned front cover and attached it.

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stevenmcavoy
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my client has been paid out to point of migration.

From the other side
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http://www.bbc.co.uk/news/uk-42012116

Alledgedly DWP only became aware of issue in December 2016…...............................how long has this thread been running!!

Pete C
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That surprises me, I wrote to them in early 2015 about this and had reply to my FoI request concerning what actions they might be considering taking dated May 2015!

Daphne
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NeverSayNo
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From the other side - 17 November 2017 08:47 PM

http://www.bbc.co.uk/news/uk-42012116

Alledgedly DWP only became aware of issue in December 2016…...............................how long has this thread been running!!

See #33 of this thread where Rosie posted internal DWP guidance showing they knew of it at least in 2013. And still we have had to go to tribunals quoting their own guidance.

Pete C
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I just thought that everyone should see this extract from my FoI request of May2015

My question-  d) What steps were/are being taken by DWP to identify claimants who may have not been paid all they were entitled to after migration.

Reply- No additional steps have been taken to identify claimants with potential entitlement to higher rates of ESA after migration. However claimants who want to apply for ESA or think they might be due more ESA are able to make a claim or apply for a re-consideration of their existing benefit award.

Andrew Dutton
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https://www.theguardian.com/society/2017/nov/17/benefit-claimants-underpaid-employment-support-allowance

I echo colleagues’ astonishment at DWP’s claim that they did not know until 2016. I wrote to them in 2013 and was told they would act on it.

flair
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My response today:

‘We have calculated x’s arrears and a payment has been issued on 23 November 2017, this will clear in x’s account on 29 November 2017. The arrears have been paid from 24 October 2014 to 2 November 2017 as we are unable to pay arrears prior to this date. This is because section 27 of the Social Security Act 1998 applies to these case’

So I’ll now need to look into challenging the period prior to this from Migration in March ‘13 to Oct ‘14 at Tribunal.

Regards Greg

Daphne
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According to a written question yesterday the DWP says -

We are aware that some individuals have been underpaid when moving to Employment and Support Allowance. The department has started to put this right and will bring these plans to parliament.

Not quite sure how far along the line they’re going to bring the plan to parliament…

http://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2017-11-23/115232

From the other side
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“The department has started to put this right and will bring these plans to parliament.” - question asks about payment miscalculation from 2011-2015 but the answer doesn’t advise that they are attempting to restrict payment from 21/10/14, answer given sounds a bit like an entry on a PIP/ESA assessment - misses out the most important part! Obviously only limited information given to give an indication that they are dealing with this but at same time not wishing to be honest that they will try and restrict how much should have been paid!

That question/answer is another thing for me to use at the UT hearing next week when I will argue against section 27 applying!! There was never an error in law in how they converted people it was all down to official error. The LH decision simply confirmed they had been making errors and made it clear on what they should have done all along. They had issued there own internal guidance prior to 21/10/14 stating that these cases are official error!  What will they do with people who they have paid full arrears to who were converted prior to 21/10/14?  I have recently had somebody paid arrears to 2013 as has someone else posting on here. The inconsistency of decision making is the most frustrating aspect! Everyone should be treated the same, precedent had previously been set by paying back to date of conversion.

[ Edited: 1 Dec 2017 at 04:12 pm by From the other side ]