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

ESA – migration cases – inaccurate IRESA assessments?

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Helentud
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West Somerset Advice Bureau

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Had several of these (that I know about) - one client had to complete a new ESA1 3 times after being transferred from IB and winning appeal to increase DLA to Middle rate care component and still no SDP! Eventually got it after a year, but only backdated for 1 month, not date of DLA decision.

Ben E Fitz
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“We have been told that claimants should be send an ESA 3 form at conversion but that this is by no means automatic “

We have seen a large number of clients where cbESA stops after 12 months, and that is that! Claimants are not being advised of need to convert to irESA, or in at least one case are told that they MUST claim JSA instead.

ESA3 is only issued when claimant or adviser contacts JCP and insists one is sent out.

The process is by no means automatic, and in many cases the ending of cbESA is being used as a means of increasing “off-flow”.

I have also seen a fair number of conversions with missed premiums, but local BDC is usually co-operative in rectifying the issue when pointed out to them.

Andrew Dutton
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Welfare rights service - Derbyshire County Council

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This subject is back on my agenda - once again people are getting ESA letters that tell them they are in the Support Group, add the SG element to the applicable amount, leave out the EDP and then show a ‘top-up’ (which is actually the IB transitional amount) and tell the claimant that they can only get CESA.

This time I won’t let other work sweep me away from this one. Could I ask again if other advisers are continuing to see this phenomenon?

Mick Quinn
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Yup, still happening. picked one up last week….

Andrew Dutton
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Letter to DWP Caxton House etc etc:(the format is a bit crunched but this is the essence of the letter)

Dear Sir/Madam,

Re. Letter of ESA entitlement to IB migration claimants in the Support Group

I have become increasingly concerned about the letter of ESA entitlement which has been sent in the past (and continues to be sent) to claimants who have made the transition from Incapacity Benefit to Employment and Support Allowance.
This letter has been issued to claimants in the Derbyshire area, but I understand that the problem may be nation-wide. I assume that the letters have been sent out ever since conversion from IB began.

I believe the letter to be flawed in its structure, and that this flaw will mislead claimants in to thinking that they have no entitlement to additional premiums, and thus no entitlement to Income-Related ESA, even when, from the internal evidence of the letter itself, they have a clear potential entitlement.

The format of the letter is as follows (with reference to the final page of each letter)

How Employment and Support Allowance has been worked out

The payment of Employment And Support Allowance is based on your National Insurance Contribution records and any additional amount the law says you need to live on

Your living expenses [personal allowance given]

Limited Capability for Work Addition

Extra money because you are in the Support Group [SG element given]

Which gives a total income-related amount [sum of the two]

Income and Benefits
[income taken off where there is any]

Your income-related amount is [sum of the two] plus £0.00 so you would have been entitled to [sum of the two]

However because you are entitled to Contribution-Based Employment and Support Allowance we will pay you [sum of the two plus any transitional amount]

Top-Up Payment
Included in your Employment and Support Allowance entitlement is a top-up payment which ensures you won’t see a reduction in the level of your benefit as a result of the change to Employment and Support Allowance [relevant transitional sum given]

The letter states plainly that the claimant is entitled to ESA in the Support Group and awards the Support Group element as part of a purported assessment for income-related benefit – but it leaves out the Enhanced Disability Premium, which should be awarded alongside the Support Group element.

There also appears to be no place in this format for the Severe Disability or Carer Premiums where they are appropriate.

The problem may be equally applicable to claimants in the Work Related Group where entitlement to EDP, CP or SDP arises from entitlement to CA, DLA or PIP.

In the cases that I have seen, there has clearly been no adaptation of the letter to fit the claimant’s individual circumstances.

The claimant is therefore given a wholly inaccurate picture of what the law says s/he needs to live on, as the ‘income-related amount’ (applicable amount) quoted is far short of what it should be.

I also consider that calling the IB transitional amount a ‘top-up payment’ may make claimants believe that this is their Income-Related entitlement when it is nothing of the sort. The explanatory wording under the heading of ‘Top-Up Payment’ is slightly ambiguous, and may contribute to any confusion rather than clarifying matters.

It is my understanding that as a part of the ‘migration’ scheme, the Secretary of State was enabled to seek information and evidence for the purposes of determining whether an award should be converted to ESA, including to establish whether a claimant whose existing award is IB or SDA, and who was not entitled to IS, might be entitled to ESA(IR) as well as ESA(Cont) on conversion. [DMG Chapter 45 para 45413]

These letters would indicate that this power has not been exercised in many cases, and that a standardised approach has been taken that has led to unintended consequences. If the problem is widespread, as I think it may be, then there will be numerous claimants around the country who are under-claiming Income-Related ESA and other benefits to which they would be ‘passported’ by IRESA.

I am working on the assumption that this letter is a nationally-used DWP format and not a local phenomenon. I am therefore raising this with your office as a general issue and will be raising individual cases with Derby Benefit Centre.

I enclose a recent example of the letter, with the claimant’s personal details deleted even though I have the claimant’s permission to share the information, as I wish this to be a policy issue and not a complaint about a single case.

Pete C
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Andrew Dutton - 03 July 2014 11:40 AM

This subject is back on my agenda - once again people are getting ESA letters that tell them they are in the Support Group, add the SG element to the applicable amount, leave out the EDP and then show a ‘top-up’ (which is actually the IB transitional amount) and tell the claimant that they can only get CESA.

This time I won’t let other work sweep me away from this one. Could I ask again if other advisers are continuing to see this phenomenon?

Yes, I have seen a number of these over the years, they seem to have dropped off in the past few months as the IB/ESA migration is completed. I can’t help but wonder how many of them are still out there.

It wouldn’t take much for the DWP to have prompted people, all it would need is a paragraph on the SG award letter to say that the claimant might now be able to get IRESA as well and invite them to take advice or ring DWP.

Either that or to ensure that claimants complete both IRESA and CBESA claims when they first claim, it has always seemed a bit artificial to offer the choice of not claiming IRESA when they are going to ask for at least some financial information anyway (eg Occupational Pensions)

DWP have clear duties to give proper advice and I think it might be a bit disingenuous for them to restrict that to ‘only when we are asked’ when faced with something as confusing as IBESA and CBESA. If there has been a widespead failure to take reasonable steps to alert CBESA claimants of the possibility of IRESA then might it be a case of maladministration followed by a trawl through past cases- I have some vague memory of something like this happening once before but I can’t remember the context, I think it was something to do with IS.

nevip
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If memory serves, many years ago under Supplementary Benefit a higher long term rate was payable after (I think, again, if memory serves) two years.  Guidance was given to local managers only to pay this when requested.  Someone got hold this guidance and launched a campaign to get this changed, resulting in a trawl of back cases leading to substantial back payments and acute embarrassment to the DHSS, as then was.

stevenmcavoy
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Welfare rights officer - Enable Scotland

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I have had cases where i been told that a previous ib claimant moved onto the support group of esa has income related only which cannot be accurate.

the explanation they have tried to give me is that income related is more money than contribution based…

1964
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Deputy Manager, Reading Community Welfare Rights Unit

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I’ve had that one too as well as being told several times that you can’t recieve both CB & IR ESA (I was once told that the client in question, who was one of the classic migration/no EDP included/no IR ESA top-up examples, would have to ‘close down her ESA claim and make a new claim for IR ESA’ if she ‘wanted an EDP’...)

roecab
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Welfare benefits supervisor - Roehampton CAB

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We have had a number of these cases. We always quote this and to date, touch wood, we have found that the DWP pays up.

ESA Decision Makers Guide Chapter 45, sections 45413 & 45414 which states;

Obtaining information

45413 The claimant’s duty to disclose information relevant to their existing award of benefit is modified to enable the Secretary of State to require from the claimant information or evidence for the purposes of determining whether that award should be converted to ESA1.

45414 This enables the Secretary of State to establish whether a claimant whose existing award is IB or SDA, and who is not entitled to IS, might be entitled to ESA(IR) as well as ESA(Cont) on conversion.

Example
Carlton is entitled to IB of £91.40. During the conversion phase the Secretary of State establishes that he has no other income. Following application of the WCA, Carlton is placed in the support group. On conversion, Carlton is entitled to ESA of £110.50 made up of ESA(Cont) of £96.85 and ESA(IR) of £13.65 (EDP).

Andrew Dutton
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Yep, I’ve put that in to my letter. It seems to have been routinely ignored in the cases we have dealt with.

Rosie W
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I have an ongoing (FTT) appeal on this exact issue. HMCTS seem strangely reluctant to hear it. 7 sets of directions to date and one adjourned hearing as no PO there (they “didn’t receive the direction”). Response contains gems such as “I decided to treat the ESA3 as a new claim for income related ESA”, followed by “as this was a change of circumstances which is favourable to the appellant I can only backdate the additional amount for 1 month”. I’m quite looking forward to the hearing. If we ever get one.

Andrew Dutton
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And still the cases are coming in - there must be a huge number of them.

I have received a reply (after a prompt) from the DWP Ministerial Correspondence section - ending with ‘I have ensured that the team responsible has been made aware of your comments which they will take in to account on their next review’

I am not comforted. The letter seems to be just a template, slightly tweaked.

Sharon M
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Derbyshire County Council

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Andrew Dutton - 02 October 2014 11:29 AM

And still the cases are coming in - there must be a huge number of them.

I have received a reply (after a prompt) from the DWP Ministerial Correspondence section - ending with ‘I have ensured that the team responsible has been made aware of your comments which they will take in to account on their next review’

I am not comforted. The letter seems to be just a template, slightly tweaked.

Andrew, have you thought about contacting Blaney Quinn at Derby benefits centre? He’s one of the main managers (that’s his name on the bottom of all those DWP letters, he must be important) and is based in Derby - although I’m aware ESA for our area is moving altogether to Perry Bar rather than shared, if it’s not already happened. I’ve always had a different experience, Derby seems to get it right, Perry Barr loads of mistakes and bad decisions on mental health issues for WCA. Anyway, I don’t pester him unnecessarily, but every time I’ve asked him to sort something out that’s getting beyond the ridiculous he’s done it. He’s like some silent DWP ninja, you just suddenly have people who wouldn’t contact you before ringing you up. Very strange. Credit where it’s due, he’s always been 100% when I’ve asked him to step in.

Andrew Dutton
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I have indeed: he never replies to letters, never. I’m glad you’ve had a better experience.

I have several outstanding formal complaints that DBC are simply not answering letters. To which formal complaints….they have not replied.

And….another day, another client receives an inaccurate IRESA assessment, phones the Contact Centre and is told he cannot get the EDP unless he’s on HR DLA Care or Enchanced* PIP for daily living.

*Enchanced????!!!!

[ Edited: 29 Oct 2014 at 01:51 pm by Andrew Dutton ]