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

ESA – migration cases – inaccurate IRESA assessments?

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Welfare Rights Adviser
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I have a letter sent in oct 2012 about no income related top up and a feb 13 about i-r esa following time limiting - there is probably more, but just a quick search.  So maybe NAWRA could gather examples of such letters from all over as proof we were telling them this since the beginning of ib conversions.

exert from the oct 12 letter:

When a claimants entitlement to income related Employment and Support Allowance is higher than their previous entitlement to Incapacity Benefit the decision maker should consider their entitlement to income related Employment and Support Allowance as well as contribution based Employment and Support Allowance as confirmed in the decision maker’s guide as copied below.

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.
1 ESA (TP, HB & CTB)(EA)(No. 2) Regs, Sch 1, para 13(a); SS (C&P) Regs, reg 32(1)
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).

Is that good enough as evidence or what?

[ Edited: 15 Dec 2017 at 11:41 am by Welfare Rights Adviser ]
flair
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‘In 2013, the Department was made aware of individual cases which were transferred in error to contributory ESA, rather than to income-related ESA, and therefore which may have had an unidentified entitlement to additional premia, such as the enhanced disability premium.’

I am still unclear how they can now time limit when they are clearly stating the Department were aware of this ‘error’ in 2013, but chose not to do anything about it? While at the same time, paid arrears all the way back for any individual cases raised up until very recently.

Paul_Treloar_AgeUK
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flair - 15 December 2017 11:43 AM

‘In 2013, the Department was made aware of individual cases which were transferred in error to contributory ESA, rather than to income-related ESA, and therefore which may have had an unidentified entitlement to additional premia, such as the enhanced disability premium.’

I am still unclear how they can now time limit when they are clearly stating the Department were aware of this ‘error’ in 2013, but chose not to do anything about it? While at the same time, paid arrears all the way back for any individual cases raised up until very recently.

DWP knew they were making mistakes in 2013 but denied there was a problem until someone made it to the Upper Tribunal who told them they were indeed making the error which they already knew they were making.

It’s ludicrous and shabby.

Dan_Manville
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Paul_Treloar_AgeUK - 15 December 2017 11:54 AM

It’s ludicrous and shabby.

Have we come to expect anything better of DWP these days?

 

GWRS adviser
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Hello all

When we’ve raised these cases with DWP we’ve not (so far - though seems likely this may now change) had a single case where they refused to backdate beyond 2014.  In fact, just yesterday I got agreement to backdate to 2012 (though admittedly the dates were a bit garbled so I’m checking this), see attached.

Having had a look through our files I’ve come up with a DWP internal memo (attached) which may indicate that DWP have been aware of the issue since June 2013.  It suggests that these decisions should be treated as official error, no suggestion that benefit is not due from date of conversion. 

Edit: Looks like the internal guidance was posted earlier at #33

[ Edited: 15 Dec 2017 at 12:35 pm by GWRS adviser ]

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Daphne
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Welfare Rights Adviser - 15 December 2017 11:36 AM

I have a letter sent in oct 2012 about no income related top up and a feb 13 about i-r esa following time limiting - there is probably more, but just a quick search.  So maybe NAWRA could gather examples of such letters from all over as proof we were telling them this since the beginning of ib conversions.

I’m very happy to do a follow up letter to previous ones - http://www.nawra.org.uk/index.php/letter-to-secretary-of-state-for-work-and-pensions-about-income-related-esa/ and http://www.nawra.org.uk/index.php/ib-and-esa-conversion-letter-to-damien-green-mp/  using evidence that anyone wants to send me. Though I can do something just with your example from your October 2012 letter and say there are many many more.

It might be next week before I do it - still drafting my response to Neil Couling on this one - http://www.nawra.org.uk/index.php/letter-to-secretary-of-state-for-work-and-pensions-on-major-problems-within-the-operation-of-universal-credit-failure-by-dwp-to-act-within-the-legislation/ ;)

[ Edited: 15 Dec 2017 at 01:41 pm by Daphne ]
Welfare Rights Adviser
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Cheers Daphne, have a great xmas, the fossil is wrapped and under the tree

From the other side
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Lets all just hope that the UT decides that “LH ” is not a relevant decision, that would put their gas at a peep!! Would be a nice belated Christmas present as I cannot see the decision being issued before then.

Martin Williams
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From the other side - 08 December 2017 10:41 AM

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!!


Worth pointing out that LH was not the first case in which the UT held that irESA and cbESA were a single benefit- PG v Secretary of State for Work and Pensions (ESA)[2014] UKUT 0282 (AAC) was decided on 17/6/14 and held:

“4.        I therefore find it hard to see how the claimant can contend that the claim he made did not encompass the income-related form of ESA as well as the contributory form. That result also seems to me to fit with legal structure of the benefit. ESA is one benefit, with two forms that have different conditions of entitlement. Contributory ESA and income-related ESA are not separate benefits. It is therefore the case that any claim has to be made for ESA in general. I do not think that it is legally possible for claim to be made for contributory ESA standing alone. It is then a necessary part of the Secretary of State’s duties in considering claims to explore whether the conditions of entitlement to both contributory and income-related ESA are or are not satisfied. A claimant who objectively qualified for income-related ESA could no doubt in practice secure the result of a decision against entitlement by declining to answer questions or to provide information specifically relevant to the income-related conditions or by making it so clear that he did not wish to claim that those questions were never asked. But that is a different thing from saying that a claim can be limited to contributory ESA from the outset.”

 

Welfare Rights Adviser
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Just spotted in an old esa file (looking for evidence for pip) the attached - it was clearly an official error in 2013!

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Andrew Dutton
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I’ve just got an ‘LH’-based decision through against which all the above will be very helpful. Thanks all.

I am also very taken with the phrase ‘put their gas at a peep’, which is wonderful. Had to look it up, I confess.

Anthony Collins
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Welfare Rights Adviser - 29 December 2017 02:27 PM

Just spotted in an old esa file (looking for evidence for pip) the attached - it was clearly an official error in 2013!

I have tried to get the full “Discussion Response” thread, on Response to “Caffas”, including this response back on 16 July 2017 via a FoI.

At first DWP said it was a external website, when pointed out it was a internal DWP url 51.1.9.250 they did a search involving a search term string of the entire discussion, something that would never be indexed…

I notice it specifically quotes
noticeboard 05.06.13 IB Reassessment, TA and ESA time limiting

It would be helpful to track down the official bulletin that was on their noticeboard, who authored it etc…we know the text from the Response to “Caffas” printout.

It would be helpful to get that discussion thread too.

 

 

Dan_Manville
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Anthony Collins - 04 January 2018 02:55 AM
Welfare Rights Adviser - 29 December 2017 02:27 PM

Just spotted in an old esa file (looking for evidence for pip) the attached - it was clearly an official error in 2013!

I have tried to get the full “Discussion Response” thread, on Response to “Caffas”, including this response back on 16 July 2017 via a FoI.

At first DWP said it was a external website, when pointed out it was a internal DWP url 51.1.9.250 they did a search involving a search term string of the entire discussion, something that would never be indexed…

I notice it specifically quotes
noticeboard 05.06.13 IB Reassessment, TA and ESA time limiting

It would be helpful to track down the official bulletin that was on their noticeboard, who authored it etc…we know the text from the Response to “Caffas” printout.

It would be helpful to get that discussion thread too.

 

Fancy doing the FOI request?

https://www.whatdotheyknow.com/

stevenmcavoy
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ive another appeal on a refusal to backdate to the point of migration coming up.  so far they have:

failed to send me a copy of the submission papers
the papers dont mention a notice of conversion
there is no copy of the “invitation” they apparently sent inviting the appointee to “claim” income related
and for some reason the migration decision took affect from almost 4 weeks after it was made

Anthony Collins
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Dan Manville - 04 January 2018 12:44 PM
Anthony Collins - 04 January 2018 02:55 AM
Welfare Rights Adviser - 29 December 2017 02:27 PM

Just spotted in an old esa file (looking for evidence for pip) the attached - it was clearly an official error in 2013!

I have tried to get the full “Discussion Response” thread, on Response to “Caffas”, including this response back on 16 July 2017 via a FoI.

At first DWP said it was a external website, when pointed out it was a internal DWP url 51.1.9.250 they did a search involving a search term string of the entire discussion, something that would never be indexed…

I notice it specifically quotes
noticeboard 05.06.13 IB Reassessment, TA and ESA time limiting

It would be helpful to track down the official bulletin that was on their noticeboard, who authored it etc…we know the text from the Response to “Caffas” printout.

It would be helpful to get that discussion thread too.

 

Fancy doing the FOI request?

https://www.whatdotheyknow.com/


Hi Dan,

I already put in 2 FoIs in 2017 to try and get the full “Discussion Response” thread, including moving to a Internal review which moved me to the stage above

Really it needs someone else to put in two fresh FoIs being less specific so the search is wider,, they no longer deny the Discussion board, and can do a search…

1- the full “Discussion Response” thread
2- the originator of noticeboard pin up 05.06.13 IB Reassessment, TA and ESA time limiting

Anyone willing?

Ive also never seen any FoI responses or submissions including any DWP “Discussion Response” board paperwork, has anyone had submissions with printouts, even if on another topic? It would help home in on it. For example if “Discussion Response” is still inuse or replaced under another name, it should be alight with this backdating topic.

Thanks

[ Edited: 5 Jan 2018 at 02:44 am by Anthony Collins ]