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ESA – migration cases – inaccurate IRESA assessments?

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Daphne
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Courtesy of From the other side, here it is -

     

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Anthony Collins
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Daphne - 12 February 2018 02:07 PM

Courtesy of From the other side, here it is -

The judge noted
“L.H. did not relate to a conversion case. Rather it related to a fresh claim.”

But then doesnt consider what a new claim involves vs a conversion in which by official error the DWP selected the wrong assessment form on conversion as standard excluding income assessment as a standard for all claims 2010 2011 2012 2013 2014 2015….

The judge is of the opinion “regulation 8(1)(a) has the effect of equating the situation of a conversion
claimant to employment and support allowance to that of a fresh claimant to that allowance.

that opinion
“that effect is of very considerable importance in the determination of this appeal.”

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.

I think its also telling that
Of course from 2013 DWP Caffas Noticeboard 05.06.13 Gabby “IB Reassessment, TA and ESA time limiting” in response to Mark Thomas Hanley BC “conversion decision revised for Official error” so conversion decisions were already marked as official error from 2013,
it was only ever New claims backdating that was undecided…conversion was always official error backdateable to the date of conversion

      [ Edited: 12 Feb 2018 at 05:10 pm by Anthony Collins ]
Dan Manville
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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.

     
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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 ]
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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?

     
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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.

     
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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 ]