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ESA – migration cases – inaccurate IRESA assessments?

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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 ]
From the other side
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Has anyone notified Frank Field on how the DWP are trying to wiggle out of paying the full arrears?

     
Greeny
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Mick Quinn - 06 February 2014 03:44 PM

[
As far as I can see, JC+ should be checking cases like these for possible entitlement to IRESA but it would appear at least in some cases that something’s going wrong.

Is anyone else finding this?
]

Check out chapter 45 Vol 8 of DMG: 45413 -45414 the example should be tattooed onto the DWP foreheads!

Same in Mcr / Salford - being dealt with by Oldham - the backdating is taking a very long time to administer (my case dates back to 2012)  but I have had an income related claim go into payment from a ‘safe date’ which was date PIP / SDP entitlement started.

     
Greeny
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Dan Manville - 06 February 2014 04:57 PM

I’ve seen a few in Wolverhampton too.

Another permutation is where someone’s passed 365 days and drops onto IRESA, tehn wins an appeal to get into the Support Group and they’re dropped back onto CESA with no consideration of continuing IRESA arising from EDP or SDP.

I remember a few years back, close to the inception of ESA there were a lot of problems with the SDP being paid during the assessment phase (they were mixed up between components and premiums; an easy mistake…)

The Disability Benefits Consortium stepped in and there was a caseload trawl to fix it.

I wonder whether; with the new administration in place, the DBC could still persuade DWP to pull their socks up.

I have this exact issue on my desk today - just working out best way of tacking it!

     
Dan Manville
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Greeny - 30 November 2017 02:47 PM
Dan Manville - 06 February 2014 04:57 PM

I’ve seen a few in Wolverhampton too.

Another permutation is where someone’s passed 365 days and drops onto IRESA, tehn wins an appeal to get into the Support Group and they’re dropped back onto CESA with no consideration of continuing IRESA arising from EDP or SDP.

I remember a few years back, close to the inception of ESA there were a lot of problems with the SDP being paid during the assessment phase (they were mixed up between components and premiums; an easy mistake…)

The Disability Benefits Consortium stepped in and there was a caseload trawl to fix it.

I wonder whether; with the new administration in place, the DBC could still persuade DWP to pull their socks up.

I have this exact issue on my desk today - just working out best way of tacking it!

I’ve always approached it as an anytime revision.

     
Dan Manville
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I’ve just seen my first arrears limited to October ‘14. I decided that “cynical ploy” and “debacle” were a bit strong for the recon request.

I have, however, a recent case where they’d sent out an ESA3 back in 2013 when one of my clients migrated. I’m happy to offer witness evidence if it’s needed.

     
FerhanaBhogadia
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flair - 24 November 2017 05:18 PM

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

My client has had the exact same reasons limiting backdating of SDP and EDP to October 2014.
I am going to put in a MR for the period prior, however I suspect much will depend on the outcome of the 3 panel tribunal being heard this week. I’d be interested to see the reasoning in the case, as DWP are using the LH case to justify. My reading of the LH case does not support what DWP seem to be saying.
I suspect regulations may well be being drafted as we discuss, to limit financial impact of any adverse decision.

     
FerhanaBhogadia
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From the other side - 29 November 2017 11:36 AM

“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.

From the OtherSide - how did your UT hearing go? Any outcome?

     
From the other side
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Decision awaited could be some time before it is issued.

The irony is that it is Judge Gamble and it is a 50/50 decision!!

     
FerhanaBhogadia
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From the other side - 08 December 2017 09:29 AM

Decision awaited could be some time before it is issued.

The irony is that it is Judge Gamble and it is a 50/50 decision!!

Lol!

On reading the LH case, I could not see it as anything but supportive to a claimant - so I did not think it was 50/50
What was the DWP argument?

 

     
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They made a very believable case that it is similar/relevant because although in LH it was a fresh claim there was still no requirement to make separate claims to ESA(c) and ESA (ir) as in conversion cases. Also para 25 of “DJ” decision where it is stated “error in law” is important in their eyes. Obviously I disagreed but in simplistic terms compared to the length of time taken by the DWP to present the case. 3 lawyers/solicitors present from DWP so it shows how much time and effort they are putting into trying to make this stick.

They also highlighted case law in regard to a decision being given by a Tribunal becoming a relevant decision even though that decision confirmed what the SoS was already doing/accepted. I said that it was a bit like they now had a “get out of jail free card” from correcting their errors for other claimants!

I had posed the question about why they had only started to use the “LH” decision as a “relevant determination” and the Judge picked up on this with the analogy “pulling a rabbit from the hat” I liked that!!

     
stuart
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Sarah Newton sets out timescale for reviewing cases, responding to Commons written question yesterday -

The Department estimates that around 270,000 cases need to be looked at again and that around 75,000 of those cases (5% of the population transferred over from incapacity benefits) may have been underpaid. The Department has already started contacting individuals to establish if there has been an underpayment of premiums and a small number of claims have already been corrected and the arrears that are due have been paid. The Department expects to complete the review and correct cases by April 2019. We will update the House shortly.

http://www.parliament.uk/business/publications/written-questions-answers-statements/written-questions-answers/?page=1&max=20&questiontype=AllQuestions&house=commons,lords&uin=116610

     
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Still no mention that they are currently restricting any arrears to 21/10/14! Possibly they have only dealt with clients converted after that date!! Then again we know that is not the case….............