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

ESA – migration cases – inaccurate IRESA assessments?

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shawn mach
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Andrew Dutton
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Just ran through the report quickly.

I’m disappointed that there appears to be no mention of how advisers raised this matter time and again with DWP and were completely ignored.

One of the ‘Lessons the DWP Has Learned’ could have been ‘Stop ignoring people who tell you things you don’t want to hear’.

It is also worth raising that ESA entitlement letters are still poorly laid-out, still poorly worded, still have premiums missing from them, still confound CESA and IRESA, and are more than occasionally still complete nonsense.

benefitsadviser
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My biggest bugbear (apart from points raised already) is the DWP can hound people for overpayments going back years , yet with this its “oh no, we cant pay back money before oct 2014, even though we fully accept they were unerpaid before then”

Helen Rogers
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I’ve had a client who has been awarded arrears of income-based ESA from 27/06/14.  This is a new claim and 27/06/14 was the date that he was placed in the Support Group.  The decision was done on 09/03/18.  He had been on contribution-based only up to then.

benefitsadviser
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It raises other issues regarding capital.

Capital is ignored for 12 months ref arrears, but if over 5K i believe they are disregarded indefinitely if due to official error.

I booked a talk to see a client regarding this, to advise what to do when she gets her arrears.

She arrived, and told me she got 12 grand 2 weeks ago (didnt tell me beforehand she had received any arrears) and basically gave the lot away as a friend told her she would lose all her benefits (inc HB) if she had over 6K.
No deprivation issues due to indefinite disregard. Im hoping its under her mattress

Maddening that people listen to “friends” instead of advice workers.

We’ve all been there

Daphne
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Kit Malthouse in the Westminster Hall debate yesterday -

On the underpayment of ESA, the hon. Lady asked about paying back further than 2014. We are actually legally restricted from recalculating payments back beyond 2014. Statute governs that position, which we are not allowed to exceed.

Aside of the fact that he’s wrong, he obviously hasn’t heard of the DWP’s financial redress policy either.

stevenmcavoy
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stevenmcavoy - 23 February 2018 06:56 PM

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.

ive just submitted a leave to appeal request on this.

client should have a very, very strong case for backdate to 2014 but ive tried a pretty tenous argument to differentiate my case from the other sides based on the “invitation”.

hopefully it even keeps it alive until we see if any challenge to the fife decision is accepted.

 

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what about the cold weather payments that have been missed? Are they going to be paid too?
The list could go on, prescriptions etc.
Has this been addressed?

I telephoned ESA today and have been told that an ESA3 has to be completed, following this, there could be a very long wait before a decision.

Anthony Collins
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Helen Rogers - 21 March 2018 11:05 AM

I’ve had a client who has been awarded arrears of income-based ESA from 27/06/14.  This is a new claim and 27/06/14 was the date that he was placed in the Support Group.  The decision was done on 09/03/18.  He had been on contribution-based only up to then.

Hi Helen

Could you please upload a redacted copy of this award letter so can see how they set it out? re:backpayment re:ESA (C) with ESA(IR) etc…

Thanks

Anthony

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Anita Wall - 22 March 2018 04:54 PM

what about the cold weather payments that have been missed? Are they going to be paid too?
The list could go on, prescriptions etc.
Has this been addressed?

I have raised the passporting issue via stakeholders and suggested they liaise with NHS Business Services Authority about the health costs - waiting to hear though

Jeremy Barker
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Does anyone know what’s happening to cases where someone had IRESA incorrectly calculated on transfer from IB to ESA but is now receiving “new style” ESA and UC? They had to claim UC after moving to a UC full service area.

Will their ESA claim be re-evaluated and the appropriate IR shortfall paid up to the point their UC claim started?

There are further issues because they should have been receiving SDP on their ESA but did not. Even if they had they would have lost it when they claimed UC.

Dan Manville
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Jeremy Barker - 23 March 2018 12:29 PM

Does anyone know what’s happening to cases where someone had IRESA incorrectly calculated on transfer from IB to ESA but is now receiving “new style” ESA and UC? They had to claim UC after moving to a UC full service area.

Will their ESA claim be re-evaluated and the appropriate IR shortfall paid up to the point their UC claim started?

There are further issues because they should have been receiving SDP on their ESA but did not. Even if they had they would have lost it when they claimed UC.

I spoke to Daphne about this a couple of weeks ago and she advised that JCP expect to pick these cases -where someone has migrated to UC- up.

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Dan Manville - 23 March 2018 12:40 PM
Jeremy Barker - 23 March 2018 12:29 PM

Does anyone know what’s happening to cases where someone had IRESA incorrectly calculated on transfer from IB to ESA but is now receiving “new style” ESA and UC? They had to claim UC after moving to a UC full service area.

Will their ESA claim be re-evaluated and the appropriate IR shortfall paid up to the point their UC claim started?

There are further issues because they should have been receiving SDP on their ESA but did not. Even if they had they would have lost it when they claimed UC.

I spoke to Daphne about this a couple of weeks ago and she advised that JCP expect to pick these cases -where someone has migrated to UC- up.

Thanks for that. There is actually an additional complication then that the initial (now abolished) 7 day waiting period for UC was applied when it should not have been (it didn’t apply if you received IRESA within the month before the UC claim). They were also wrongly advised by JCP to claim HB. This meant they lost about 6 weeks UC through the initial waiting days and waiting for a HB claim to be rejected before they started their UC claim. Not surprisingly they have significant rent arrears.

This is all a really unbelievable mess.

[ Edited: 23 Mar 2018 at 01:07 pm by Jeremy Barker ]
Dan Manville
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Jeremy Barker - 23 March 2018 12:58 PM

This is all a really unbelievable mess.

I would certainly be requesting an ex gratia payment in respect of the missing UC if they can’t backdate the UC.

Anthony Collins
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Jeremy Barker - 23 March 2018 12:58 PM
Dan Manville - 23 March 2018 12:40 PM
Jeremy Barker - 23 March 2018 12:29 PM

Does anyone know what’s happening to cases where someone had IRESA incorrectly calculated on transfer from IB to ESA but is now receiving “new style” ESA and UC? They had to claim UC after moving to a UC full service area. Will their ESA claim be re-evaluated and the appropriate IR shortfall paid up to the point their UC claim started? There are further issues because they should have been receiving SDP on their ESA but did not. Even if they had they would have lost it when they claimed UC.

I spoke to Daphne about this a couple of weeks ago and she advised that JCP expect to pick these cases -where someone has migrated to UC- up.

Thanks for that. There is actually an additional complication then that the initial (now abolished) 7 day waiting period for UC was applied when it should not have been (it didn’t apply if you received IRESA within the month before the UC claim). They were also wrongly advised by JCP to claim HB. This meant they lost about 6 weeks UC through the initial waiting days and waiting for a HB claim to be rejected before they started their UC claim. Not surprisingly they have significant rent arrears. This is all a really unbelievable mess.

Hi Jeremy

What your asking is with regard to getting SDP top up on UC, is transitional protection.

“Transitional Protection is only for some people and it is not available to anybody yet. “

In this case my understanding from the advice below,  is no your client will not get it.

Your client “moved before ‘managed migration’ in July 2019.”

Theres a warning there for any clients re a change of circumstances, as any award before Oct 2014, the DWP are classing as error in law and so capital is only disregarded for 1 year. There will be no transitional protection and over the capital limi,t so claim would end when 1 year is over and theres a change of circumstances to report and therefore necessitate a failed UC claim.

Until we know from S.Macualay/From the Other Side whether there will be a challenge to
1-official error and therefore
2-full payment pre Oct 2014
the DWPs mind is decided in the DMG 2/18

They also held firm to the NAO report, which provides the DWP position
June 2015 DJ, a conversion case – decided that the Department should consider both
elements of ESA on conversion and, when this has not happened, that it should
revise its decision for official error.
January 2018 The case of SK – confirmed the Department’s position on Section 27 as applied
to the ESA error.
Section 5
No arrears will be paid for the period before 21 October 2014
(see paragraph 2.10)

Best

Anthony

https://www.turn2us.org.uk/Benefit-guides/Universal-Credit-transitional-protection/What-is-Universal-Credit-transitional-protection
What is Universal Credit (UC) transitional protection?
Transitional Protection is an extra ‘transitional’ amount which tops up your Universal Credit award so that you are not worse off when you move onto Universal Credit.
Transitional Protection is only for some people and it is not available to anybody yet.
People who are claiming Universal Credit at the moment are people who have had a change which meant they had to make a new benefit claim. These people are called ‘natural migrants’. Transitional Protection is not available to them.
Transitional Protection will only be available to people who are moved over to Universal Credit even though nothing has happened which makes them start a new benefit claim. These people are called ‘managed migrants’. There will not be any managed migrants until the Universal Credit full digital service is available in all areas.

The Department for Work and Pensions (DWP) is planning to start ‘managed migration’ in July 2019.
Updated April 2017

The Key NAO points
Key aspects of three Upper Tribunal rulings
There have been three key Upper Tribunal cases which have shaped the Department’s response
to this error: the case of LH, the case of DJ and the case of SK
October 2014 LH, an Employment and Support Allowance (ESA) appeal case – not a
‘conversion’ case but a new claim – decided that there was no legal requirement
to make separate claims for the two elements of ESA (contribution-based and
income-related) because ESA is a single benefit.
June 2015 DJ, a conversion case – decided that the Department should consider both
elements of ESA on conversion and, when this has not happened, that it should
revise its decision for official error.
January 2018 The case of SK – confirmed the Department’s position on Section 27 as applied
to the ESA error.
Source: National Audit Off ce analysis
Notes
1 LH versus SoS for Work and Pensions (ESA) [2014], CE/4181/2013, October 2014.
2 DJ versus SoS for Work and Pensions (ESA) [2015], CE/277/2014, June 2015.
3 SK versus SoS for Work and Pensions (ESA) [2017], CSE/33/2017, December 2017

Figure 5
Examples showing how arrears due might differ from case to case
Arrears due will vary depending on premiums the claimant is entitled to and the length of time
that these have been underpaid.

No arrears will be paid for the period before 21 October 2014
(see paragraph 2.10)

Claimant X
Converted to contribution-based Employment and Support Allowance (ESA)
in 2011.
Their circumstances at the date of conversion meant that if they had been
assessed for income-related ESA they would have been entitled to:
• Enhanced Disability Premium (EDP) at around £16 per week; and
• Severe Disability Premium (SDP) at around £62 per week.
Their circumstances have not changed and their claim to ESA is still active
when they are contacted by the Department in 2018.
Arrears due Around £13,000

[ Edited: 25 Mar 2018 at 10:33 pm by Anthony Collins ]