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

ESA – migration cases – inaccurate IRESA assessments?

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Anthony Collins
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Dan Manville - 12 February 2018 06:39 PM

I note that the claimant in this case was sent an ESA3. Most of mine weren’t. I think we’re still game on in those circumstances.

Yes have a Severely Mentally Impaired, limited mental capacity ESA client whose case of underpayment goes back to 2012, clients IB conversion DWP automatically sent a ESA50_006_001 so no income questions asked for evaluating IR, therefore no IS10 form, so owed SDP for 6 years and counting…

      [ Edited: 13 Feb 2018 at 07:08 pm by Anthony Collins ]
Daphne
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NAO have announced they are doing an investigation to -

- assess the scale of the issue, including: the nature of the error, the amount of underpayment, who is affected and the Department’s plans for paying arrears; and
- outline the Department’s management of the issue, including: how and when the issue was discovered; and how information was acted upon.

https://www.nao.org.uk/work-in-progress/errors-in-employment-and-support-allowance/

      [ Edited: 14 Feb 2018 at 12:24 pm by Daphne ]
Anthony Collins
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Daphne - 14 February 2018 12:17 PM

NAO have announced they are doing an investigation to -

- assess the scale of the issue, including: the nature of the error, the amount of underpayment, who is affected and the Department’s plans for paying arrears; and
- outline the Department’s management of the issue, including: how and when the issue was discovered; and how information was acted upon.

https://www.nao.org.uk/work-in-progress/errors-in-employment-and-support-allowance/

- outline the Department’s management of the issue, including: how and when the issue was discovered; and how information was acted upon.

Rosie W - 10 October 2014 11:58 AM

Just had an appeal lapsed before the hearing due to the presenting officer noticing they have had the attached internal guidance, which he gave me a copy of, since June last year. As far as I can see it has not been reflected so far in Chapter 45 of the DMG which is disappointing.
However, I imagine a copy sent with a reconsideration request or appeal should produce a positive result.

The guidance from back to 2013 of how to handle the cases for conversion “as official error” is known to us on this thread courtesy Rosie W case and the DWP Presenting officer file

- assess the scale of the issue, including: the nature of the error, the amount of underpayment, who is affected and the Department’s plans for paying arrears; and

This thread has evidence of back payments in full in many Rights organisations files post 2014s decision and pre, even ive seen mention late end 2017, possible by now some even early 2018 filtered through though rare im expecting. We should get some decisions those have to hand redacted and uploaded to the thread if possible

From the other side - 08 February 2018 01:58 PM

even though they have previously paid out earlier than the LH determination on cases they had decided after the LH decision was issued.

Note I just recently asked for backpayments figures, the size of payment roughly allows calculation of the years if reasoning known
https://www.whatdotheyknow.com/request/backpayment_figures_for_sdp_on_c
but DWP response “they dont broken down the reasoning…”

The NAO should help with sounding out opposition political parties and getting press traction following up the original story as the news now is they are not paying in full.

 

      [ Edited: 14 Feb 2018 at 01:17 pm by Anthony Collins ]
Daphne
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I’m thinking it might be an idea to send the NAO a link to this thread?

     
Daphne
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Anthony Collins
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Daphne - 14 February 2018 01:53 PM

I’m thinking it might be an idea to send the NAO a link to this thread?

I tbink thats a good idea Daphne, and NAWRA making contact for any input if for example DWP dont come forward with

Rosie W - 10 October 2014 11:58 AM

Just had an appeal lapsed before the hearing due to the presenting officer noticing they have had the attached internal guidance, which he gave me a copy of, since June last year. As far as I can see it has not been reflected so far in Chapter 45 of the DMG which is disappointing.
However, I imagine a copy sent with a reconsideration request or appeal should produce a positive result.

The guidance from back in 2013 to handle the cases for conversion “as official error” back to date of award

And the fact till broke in the news October 2017 they were paying in full back to 2010, even paying in full with some rights clients having award letters for these periods dated end 2017.

Have any on here had clients with letters awarding preOctober 2014 dated 2018?

Daphne - 14 February 2018 04:33 PM

NAWRA has sent a reply to Ms McVey -
http://www.nawra.org.uk/index.php/letter-to-secretary-of-state-for-work-and-pensions-about-income-related-esa/

Excellent letter Daphne, in particular pointing out
“law already in place – in this case regulation 8 of the Employment and Support
Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit)
(Existing Awards) (No.2) Regulations 2010.”
“should be revised on grounds of official error and backdated to the date of conversion from incapacity
benefit.”

and with regard to getting an official department response on
“Schedule 9 paragraph 11(2) of the Employment and Support
Allowance Regulations 2008, any arrears of £5,000 or more paid as a result of
official error are ignored until then end of that award and this should be clarified
on claimant’s letters”

 

      [ Edited: 16 Feb 2018 at 05:50 pm by Anthony Collins ]
Dan Manville
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Daphne - 14 February 2018 01:53 PM

I’m thinking it might be an idea to send the NAO a link to this thread?

Do it.

     
Andrew Dutton
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Dan Manville - 16 February 2018 04:05 PM
Daphne - 14 February 2018 01:53 PM

I’m thinking it might be an idea to send the NAO a link to this thread?

Do it.


I agree.

     
Dan Manville
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This is a live issue for me so I’ve reviewed the case law and I fear I see some really underhanded tactics in play.

In DJ referenced by Judge Gamble the DWP initially put their hands up; accepted they were wrong and paid the appellant, but then; possibly when LH gathered pace, they rowed back on that and argued their revision was not lawful.

Mike I’d love to know when their second submission was drafted; I can’t tell from the decision in DJ.

What is clear from DJ though is that DWP were aware of their erroneous take on the conversion process prior to the decision in LH. That awareness doesn’t seem to be material on my reading of S27 SSA ‘98 though.

That aside… where LH might be distinguished from CSE 33 2017 is that on conversion the evidence gathering function is on the Sec State rather than on the claimant; it’s up to the Sec State to ask the right questions; you can’t to my mind equate the conversion process with a new claim and I’d argue Judge Gamble got it wrong. That analysis is implicit in paragraph 28 of DJ…

     
Daphne
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Andrew Dutton - 16 February 2018 04:10 PM
Dan Manville - 16 February 2018 04:05 PM
Daphne - 14 February 2018 01:53 PM

I’m thinking it might be an idea to send the NAO a link to this thread?

Do it.


I agree.

I have - I hope they find it helpful

     
Dan Manville
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DWP have applied to strike out my appeal on this issue…

     
Anthony Collins
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Dan Manville - 21 February 2018 03:17 PM

DWP have applied to strike out my appeal on this issue…

This would be bad…we need it to go through…Do you have a copy of their application?

Any thoughts Daphne from NAWRAs side - obviously it will affect any response from your letter if its struck out.

Any chance on CPAG taking on the case. It was The Public Law Project, Inclusion London, Revolving Doors and Disability Rights UK on RF v Secretary of State for Work and Pension re: DWP’s changes to PIP regulations were declared unlawful

It might need approach to a consortium of similar to tackle this issue.

It is also an issue ive not seen any publicity on this matter to the general public - no follow up to the articles from November where DWP said there was this mistake and they will pay…

Dan Manville - 19 February 2018 12:40 PM

Mike I’d love to know when their second submission was drafted; I can’t tell from the decision in DJ.

Yes do we have a copy of their submissions in this DJ and LHs?

>accepted they were wrong and paid the appellant, rowed back on that
as a ploy to not pay “the amount the law said they need to live on”

>conversion the evidence gathering function is on the Sec State rather than on the claimant
This is echoed in the reality of the process of a ESA50 being automatically sent as the “correct” form in the eyes of the claimant as it is this they told to fill in, not a ESA3!

      [ Edited: 21 Feb 2018 at 08:49 pm by Anthony Collins ]
stevenmcavoy
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im waiting on the sor for my appeal which refused backdating completely and just getting a chance to read the decision from fife.

i cannot for the life of me see why the failure to follow reg 8 in the process of conversion is anything other than official error rather than an error of law.  there wasnt any degree of interpretation required in the process to be followed when converting and in all my cases that simply hasnt been followed.

in the case im waiting on the fife decision should mean my client does get a backdate but will end up missing around 10 months so very annoying.

     
Dan Manville
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Anthony Collins - 21 February 2018 08:47 PM
Dan Manville - 21 February 2018 03:17 PM

DWP have applied to strike out my appeal on this issue…

This would be bad…we need it to go through…Do you have a copy of their application?

 

yes but I’m going to struggle to redact it; time is very much at a premium on my desk at the moment.

Basically it relies on LH and doesn’t mention the Fife decision.

      [ Edited: 26 Feb 2018 at 04:31 pm by Dan Manville ]
Daphne
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I had a stakeholder meeting with DWP today specifically about this issue - the operational aspects of the trawl and not legal argument about the limited backdating. Attached are some brief notes - if anyone has feedback or suggestions about ways the process could be improved they are open to hearing it - it ramps up big time in April so suggestions asap would be good - just put on here or direct message me.