ESA – migration cases – inaccurate IRESA assessments?

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.

Yes just to add to that - they are trawling all cases which migrated from IB to ESA between 1/1/11 and 31/12/14 regardless of what their current circumstances are - so some will still be on ESA, some on UC and some not on benefits. If they are identified as someone who was incorrectly assessed then they look at all the changes of circumstances from date of conversion to present and work out the arrears - from 21/10/14 to whatever date is appropriate.

HM Courts & Tribunals Service are hoping to deal with as many strike out applications as possible in one swoop. If anyone else has appeals against the application of S27 SSA; limiting arrears to 21/10/14, where JCP have applied to strike them out, please would you get in touch. Particularly if you’re in the Birmingham ASC catchment.

dan dot manville AT wolverhampton dot gov dot uk.

Thanks

I have 2 clients who applied for ESA in 2011 (not conversions) but only have CBESA currently. Is there any scope for getting backdated IRESA and how far? Neither can remember why they only chose (if they chose) to claim CBESA as neither had capital or other income.

Joanna - 27 March 2018 09:29 PM

Quick question: client was transferred in October 2013 to CB ESA from IB (Y). She was a full time university student at that point, receiving DLA, then PIP, both at higher/enh rates for both components. Would the fact that she was on Youth IB and a FT student prevent her from asking for IRESA and premiums backdate?

No - she is entitled to irESA as a disabled student (dependant on income and savings) but will probably have backdating limited to Oct 2014 which she should challenge - see back in this thread

This is the decision letter for the client that had income-based ESA backdated to 27/06/14.  Unfortunately, he only gave me the first page of the letter.

Now I don’t want to steal CPAG’s thunder however it probably, quickly, needs saying that appealing against these decisions limiting arrears to October 2014 might not be a brilliant idea; I’ll let Martin Williams go into detail.

I would strongly suggest anyone thinking about it holds off until Martin explains why. CPAG expect to issue JR any day soon.

As an aside I’m still hoping to collate appeal reference numbers to pass them up to HMCTS as they hope to deal with any outstanding strike out applications in one fell swoop. After my convo with Martin yesterday I think they should be struck out but it would still help CTS greatly if they could do it all at once. Hopefully something will go round NAWRA soon but in the meantime people can get me on here.

CPAG issued an application in the High Court for permission to apply for judicial review on behalf of one of the affected claimants on 29/03/2018 and this was served on DWP solicitors the same day.

If things go smoothly we are hoping to have a decision on permission or at least transfer to the UT by the end of April.

Just to clarify Dan’s point on appeal rights-

1. We are concerned that the First-tier Tribunal may not have jurisdiction in appeals in these cases. That is part of our reason for issuing judicial review proceedings (although we also contend that the issue is appropriate for consideration via that route in any event given the massive review exercise currently being undertaken and the need for clear authority and also the fact that the challenge is to a legal position adopted by the DWP).

2. The reason for our concern about appeal rights is as follows:

a) When the SSWP decides in one of these cases that she will only pay back to 21/10/2014 because it is a s.27 case then she is also clearly deciding that she cannot revise for official error.

b) In a case where the SSWP has refused to revise for official error then the time for appealing runs from the date of the original decision which the SSWP has refused to revise and not from the date of the decision refusing to revise (R(IS)15/04 plus Beltekian v Westminster and SSWP in the Court of Appeal).

c) In these cases the conversion decision, which is the decision we say was wrong by reason of official error, was taken prior to 21/10/2014 (ie in excess of 13 months ago). When the SSWP awards arrears from 21/10/2014 only then an appeal against that decision is not one where a tribunal is able to go back and revise the conversion decision, even if it accepts the argument that these are not s.27 cases as the appeal time limit has not been met in that case.

3. It is worth pointing out that if we are wrong that these are official error cases then there is an alternative argument which is that the SSWP has chosen the wrong date for s.27 to operate from that the tribunal could deal with- as previously pointed out on this thread there was a prior decision in June 2014 which established the exact same points as the October 2014 case.  A tribunal could decide that (1) this is not official error and (2) the June case is the appropriate “relevant determination” for s.27. However, it seems to us that a tribunal which found it was official error would actually then have to say that meant it had no jurisdiction and dismiss the appeal for that reason (or strike out for want of jurisdiction).

4. If a tribunal took the approach of deciding the June date was appropriate and our judicial review succeeds, I would be a bit worried about whether the SSWP would then have a power to sort things out for that particular claimant… that being the case might be worth getting cases in the FtT stayed pending the JR.

There is a forthcoming bulletin article about this and hopefully we will do a proper press release next week. Will try to keep this thread updated on progress as much as we are able - I’m not around for a lot of next week so apologies if there are further questions I don’t manage to reply to promptly.

Martin

I have one case with ESAir arrears limited to 2014 at MR stage, awaiting MRN, and two cases in the Oldham office awaiting a first decision on arrears, so look forward to reading your press release & further info - thanks to CPAG and others for their work on this issue - this thread continues to be an invaluable resource!

An estimated 8,000 cases in Northern Ireland ...

Via BBC news: Benefits mistakes affect more than 8,000 in NI

... and the Belfast Telegraph: 8000 ESA claimants lost £3k due to errors, claims SDLP

Press release here: http://www.cpag.org.uk/content/charity-takes-legal-action-against-dwp-disabled-claimants’-arrears

Case should, we hope, shortly be transferred to Upper Tribunal with directions then to be agreed/set about expedition. We still have not received a single sentence from DWP setting out why their position on s.27 is correct.

my client scanned me a letter he got.

we picked up on missing ir esa.  got top up added and eventually backdated to 2014 under error of law.  we done a mandatory recon pending result of cpag challenge and client has been issued a letter (Which apparently then got overturned) saying backdate to migration due to official error.

In a case where they actually revised for official error and then they further revised that decision to say that was wrong, then I think you do probably have a right of appeal. Although it makes my head ache trying to work it out.

Martin Williams - 20 April 2018 02:55 PM

Press release here: http://www.cpag.org.uk/content/charity-takes-legal-action-against-dwp-disabled-claimants’-arrears

Nice one Martin ... have added to news too, so will also go out in today’s email newsletter:

https://www.rightsnet.org.uk/welfare-rights/news/item/cpag-launches-judicial-review-proceedings-against-dwp-decision-to-limit-bac

Please also note that I have requested leave to appeal UT decision re client SK.

From the other side - 20 April 2018 04:14 PM

Please also note that I have requested leave to appeal UT decision re client SK.

keep us updated.

i have a leave to appeal request in at ft for a case as well.