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

ESA – migration cases – inaccurate IRESA assessments?

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Paul_Treloar_AgeUK
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Martin Williams - 12 March 2018 03:46 PM

Hi Anthony- thanks for uploading this document. Do you know when it is dated from? Would be useful to see the FOI request and response as well.

Martin.

Here you are Martin, amazing what you can find from searching a document’s properties

https://www.whatdotheyknow.com/request/esa_ibr

     
Martin Williams
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Thanks Paul….. must learn the internet some day…..

     
Daphne
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In case it’s helpful attached are my notes from an extra stakeholder meeting we had about the process for trawling and contacting ESA claimants who were not assessed for irESA when migrated over from IB. Following an initial trial of 1,000 claimants, they start next month on the 300,000 they have to do which they aim to complete within a year before UC migration starts!!

Happy to answer any questions if I can…

     
Anthony Collins
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Daphne - 13 March 2018 02:46 PM

In case it’s helpful attached are my notes from an extra stakeholder meeting we had about the process for trawling and contacting ESA claimants who were not assessed for irESA when migrated over from IB. Following an initial trial of 1,000 claimants, they start next month on the 300,000 they have to do which they aim to complete within a year before UC migration starts!!

Happy to answer any questions if I can…

Hi Daphne

Is this the right upload its the same as the one uploaded 26 FEBRUARY 2018, 03:17 PM
Notes from stakeholder meeting on the trawl of IB to ESA cases incorrectly assessed – 26 February 2018

Did we get an official response to
http://www.nawra.org.uk/index.php/letter-to-secretary-of-state-for-work-and-pensions-about-income-related-esa/
Update 9 Feb 2018: 
NAWRA has replied to point out that section 27 of the Social Security Act 1998 does not apply in this situation.


Anthony

 

 

     
stuart
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Esther McVey written statement today provides update on case review priorities -

My Department will be reviewing close to 300,000 cases, of which just under a quarter have been underpaid. We have begun contacting individuals and making payments. We are actively recruiting staff and have scaled up the team undertaking the work from 10 to 50 in December last year, which will grow further to 400 from April, allowing us to deal with the situation at pace…

Today I can confirm that, based on departmental analysis, we will be prioritising any individuals whom we know from our systems to be terminally ill. Thereafter we will work through the cases identified as most likely to have been underpaid according to our systems. We have also undertaken an Equality Analysis to support this prioritisation approach.

Once an individual is contacted, and the relevant information gathered, they can expect to receive appropriate payment within 12 weeks. I can also confirm that once contacted, individuals will be provided with a dedicated free phone number on which they can make contact with the Department.

 

     
FerhanaBhogadia
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Hi
My client was given backdated arrears to 21/10/14. I’ve put in an SSCS1 appeal on the grounds:
* Case law and legislation has been misapplied
* LH was about a new claim and not about a conversion decision so it is wrong application
* Earlier cases such as PG v SSWP [2014] UKUT 0282 (AAC) established ESA is one benefit and should be paid from the date of conversion.
* The decision was discriminatory under the HRA/ECHR as client is in the category of severely disabled people


The UT case heard in Dec 2017 - could I clarify: has the DWP won that case however written judgement in full is awaited?
Has anyone got an update on the situation as it will directly impact on my client.

      [ Edited: 16 Mar 2018 at 02:02 pm by FerhanaBhogadia ]
FerhanaBhogadia
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FerhanaBhogadia - 16 March 2018 01:58 PM

Hi
My client was given backdated arrears to 21/10/14. I’ve put in an SSCS1 appeal on the grounds:
* Case law and legislation has been misapplied
* LH was about a new case and not about a new claim and not about a conversion decision so it is wrong application
* Earlier cases such as PG v SSWP [2014] UKUT 0282 (AAC) established ESA is one benefit and should be paid from the date of conversion.
* The decision was discriminatory under the HRA/ECHR as client is in the category of severely disabled people


The UT case heard in Dec 2017 - could I clarify: has the DWP won that case however written judgement in full is awaited?
Has anyone got an update on the situation as it will directly impact on my client.

Its probably obvious but what I meant was: SSCS1 appeal to backdate further to the date of conversion (in 2011)

     
Dan Manville
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FerhanaBhogadia - 16 March 2018 01:58 PM


The UT case heard in Dec 2017 - could I clarify: has the DWP won that case however written judgement in full is awaited?
Has anyone got an update on the situation as it will directly impact on my client.

The decision is further up the thread; Daphne linked to it.

I’ve got an appeal running against a S27 decision as well; DWP applied to strike mine out; I’m still waiting for the decision on that. At least there’ll be early consideration of the merits; I made the same arguments as you bar the HRA element.

     
From the other side
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With regards to the UT case in December 17 the client won the appeal as she had only been paid ESA(ir) from 2016 when she became aware that she had been converted incorrectly. However the Judge decided that the DWP could restrict arrears from 21/10/14 as per their submission. When the UT decision was issued, it was the full written judgement. Action is still on-going about potential appeal against the UT decision.

     
shawn
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New DWP guidance just issued on CSE/33/17 -

This memo gives guidance on a recent decision of the UT about the date from which arrears of ESA(IR) can be awarded in cases where awards of IB or SDA were incorrectly converted to ESA(Cont) only.

DMG Memo 2/18

     
Anthony Collins
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Thanks Shawn for directing us to The DMG Memo 2/18

It has a lot of their position and answers alot of questions - how they are trying to strike out appeals,  error of law so the capital limit etc…

From the other side - 28 February 2018 10:07 AM

As this was an award based on LH error in law, not official error, the clients are aware to spend it within the 1 year?Another reason for an appeal decision
My take on it is that the level of arrears has been restricted due to “error in law” but the reason for the arrears is “official error” therefore the client should not need to spend it within a year. Hence the reason I wish to read the decision notice issued to client.

DMG Memo 2/18
1. superseded for error of law if it was made on or before 21.10.14 or
2. revised for official error if it was made after 21.10.14.

if award before 2014 error of law even though they not paying for 2014, its the awards date decision that counts, it will have 1 year limit or indeed be change of circumstances now…

Any legal position on them saying

error of law if it was made on or before 21.10.14 or
official error if it was made after 21.10.14

Saying the court case is dead 21-10-14 then any mistake is official error - not error in law…

Interestingly there will be no real mandatory review possible because the text is already given to the DMs to copy and paste!

And already appears http://forums.moneysavingexpert.com/showthread.php?t=5761965
here’s the MR decision #19   24th Jan 18, 11:59 AM

Dan Manville - 16 March 2018 02:16 PM

I’ve got an appeal running against a S27 decision as well; DWP applied to strike mine out; I’m still waiting for the decision on that. At least there’ll be early consideration of the merits; I made the same arguments as you bar the HRA element.

FerhanaBhogadia - 16 March 2018 01:58 PM

Hi
My client was given backdated arrears to 21/10/14. I’ve put in an SSCS1 appeal on the grounds:
Case law and legislation has been misapplied
LH was about a new case and not about a new claim and not about a conversion decision so it is wrong application
Earlier cases such as PG v SSWP [2014] UKUT 0282 (AAC) established ESA is one benefit and should be paid from the date of conversion.
The decision was discriminatory under the HRA/ECHR as client is in the category of severely disabled people

FerhanaBhogadia This is the DWPs automatic reply to any appeal re:striking out

We now know what the content of what they wrote in your case Dan Manville, knowing this you need to respond now with a counter defense by finding a hole in their argument now we know what they wrote

FerhanaBhogadia you will need to look at it too to find a follow up response as it will be a standard automatic request to the court by the DWP, you know before they respond what they are going to write (the same with all madatory review requests)

DMG Memo 2/18
In SK v SSWP (CSE/33/17), in a similar case where the issue was the date from which arrears of ESA(IR) could be paid, the Upper Tribunal Judge held that 1. LH v SSWP was a relevant determination 2. the conversion decision fell to be revised or superseded in accordance with LH v SSWP 3. section 27(3) applied to limit arrears to 21.10.14, and 4. the FtT had erred in failing to do so.
I therefore respectfully submit that the supersession decision dated [date of supersession decision] is correctly made.

I invite the FtT to strike out the proceedings on the grounds that the appeal has no reasonable prospect of success.

Alternatively, I invite the FtT to dismiss the appeal. The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, rule 8(3)(c) and 27(3)

FerhanaBhogadia - 16 March 2018 01:58 PM

Hi
My client was given backdated arrears to 21/10/14. I’ve put in an SSCS1 appeal on the grounds:
The decision was discriminatory under the HRA/ECHR as client is in the category of severely disabled people
Its probably obvious but what I meant was: SSCS1 appeal to backdate further to the date of conversion (in 2011)

I agree with that FerhanaBhogadia

Its the same category that DWP’s changes to PIP regulations were declared unlawful by action by combined
The Public Law Project, Inclusion London, Revolving Doors and Disability Rights UK on RF v Secretary of State for Work and Pensions

This only affects severely disabled.

This needs tackled as it was for PIP

I not heard a dicky bird out of the opposition political parties it was in the Labour manifesto to overturn the PIP changes and even when the election was lost they still reiterated this would be their position…

This is only press I found criticising the government or indeed following up the case
https://www.mirror.co.uk/news/politics/thousands-claiming-esa-disability-benefits-11747099
By Jon Vale 23:55, 24 DEC 2017

From the other side - 16 March 2018 02:21 PM

With regards to the UT case in December 17 the client won the appeal as she had only been paid ESA(ir) from 2016 when she became aware that she had been converted incorrectly. However the Judge decided that the DWP could restrict arrears from 21/10/14 as per their submission. When the UT decision was issued, it was the full written judgement. Action is still on-going about potential appeal against the UT decision.

Hi S.Maculay, Is it currently just CPAG talking on the possibility of the case?
Have The Public Law Project, Inclusion London, Revolving Doors and Disability Rights UK been approached as they were successful with PIP.

FerhanaBhogadia and Dan Manville you should also make an approach The Public Law Project, Inclusion London, Revolving Doors and Disability Rights UK ?SO they know the time is now to tackle the issue before your appeals struck out

Best

Anthony

 

      [ Edited: 16 Mar 2018 at 06:28 pm by Anthony Collins ]
Daphne
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Anthony Collins - 13 March 2018 06:26 PM
Daphne - 13 March 2018 02:46 PM

In case it’s helpful attached are my notes from an extra stakeholder meeting we had about the process for trawling and contacting ESA claimants who were not assessed for irESA when migrated over from IB. Following an initial trial of 1,000 claimants, they start next month on the 300,000 they have to do which they aim to complete within a year before UC migration starts!!

Happy to answer any questions if I can…

Hi Daphne

Is this the right upload its the same as the one uploaded 26 FEBRUARY 2018, 03:17 PM
Notes from stakeholder meeting on the trawl of IB to ESA cases incorrectly assessed – 26 February 2018

Did we get an official response to
http://www.nawra.org.uk/index.php/letter-to-secretary-of-state-for-work-and-pensions-about-income-related-esa/
Update 9 Feb 2018: 
NAWRA has replied to point out that section 27 of the Social Security Act 1998 does not apply in this situation.


Anthony

 

Sorry Anthony - forgot I’d already uploaded once - Too many things going on in my head!

And no response from Ms McVey yet - I’ve been waiting to see if any news on whether From the other side’s UT case will be appealed. Also the NAO report is due on Wednesday and it will be interesting to see what that says…

     
Daphne
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The BBC is interested in speaking to a claimant affected by this by Wednesday ready for when the NAO report comes out. If anyone has a claimant who might be willing to talk to them can you let me know and I’ll put you in touch.

Thanks

     
Anthony Collins
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There has been two press reports so far ive spotted

Unfortunately they both have the same faults

-They accept the DWP line of not paying pre October 2014 because they cannot legally - ummm, heard of an emergency act of Parliament passed without debate or vote, because thats what they used to illegally attempt to restrict payments in PIP Mental health last year!!
Short term memory loss at the DWP….

-The forgot to mention the cut and paste “Strick out appeals text” they have provided DMs to issue against anyone challenging it

-They do not mention the UT decision is disputed by Rights Workers as the Guidance was in the DMG 2009 with examples.

-Nor that it was a new claim and we are talking of conversion.

-They do not mention it was known Official Error in internal memo 2013 with DMs to pay back to date of conversion

-They do not mention till December 2017 there were correct payments back to 2010

-They do not mention we are waiting on see if an urgent appeal is being bought to resolve this injustice.

-They do not mention the DWP has committed (at Meeting Daphne was at) that if successfully appealed they will pay back to 2010 and are retaining the client details to do so.

-There is no mention of it discriminates specifically against the disabled as the PIP changes discriminated against those with Mental health issues

I notice there is also the problem of no pledge to sort out the injustice by the opposition, as they did with the PIP Mental health change

https://www.theguardian.com/society/2018/mar/21/disability-claimants-receive-20000-after-being-underpaid-dwp

Underpaid disability claimants to receive up to £20,000
Estimated 70,000 Britons did not receive full entitlement after errors worth £340m by DWP staff
The DWP has promised to make repayments by April 2019. They will be backdated to 21 October 2014, the date of a court ruling confirming the error. An estimated £150m of underpayments relating to the period before the court ruling cannot legally be paid, the DWP says.

https://www.independent.co.uk/news/uk/home-news/disabled-benefits-70000-claimants-owed-thousands-esa-government-error-not-paid-a8264921.html
70,000 disabled people owed thousands in benefits due to government error – and some will never be paid back
Claimants underpaid on average £5,000 each – with around 20,000 owed £11,500 and some owed as much as £20,000 – due to ‘shoddy administration’, National Audit Office reveals
The DWP will pay £340m back in underpayments, but estimates there may be up to £150m more which cannot be paid back because arrears will only be accounted for as far back as 21 October 2014, the date of a legal tribunal ruling.

Anthony

      [ Edited: 21 Mar 2018 at 03:39 am by Anthony Collins ]
Daphne
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NAWRA is hopefully on the six oclock news tonight (BBC) - provided it survives the edit I hope the backdating issue will come across there