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

ESA – migration cases – inaccurate IRESA assessments?

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Rosie W
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Welfare rights service - Northumbria Healthcare NHS Trust

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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.

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Andrew Dutton
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Welfare rights service - Derbyshire County Council

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Thanks for this. I shall use it.

I have previously quoted the following from DMG -Obtaining information
45413 The claimant’s duty to disclose information relevant to their existing award of benefit is modified to enable the Secretary of State to require from the claimant information or evidence for the purposes of determining whether that award should be converted
to ESA1.
1 ESA (TP, HB & CTB)(EA)(No. 2) Regs, Sch 1, para 13(a); SS (C&P) Regs, reg 32(1)
45414 This enables the Secretary of State to establish whether a claimant whose existing
award is IB or SDA, and who is not entitled to IS, might be entitled to ESA(IR) as well
as ESA(Cont) on conversion.

However, it’s getting a reply of any sort that is the major problem.

Tom H
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Back in post 13 of this thread I mentioned that I had taken a case to the UT on this which became lead case.  Thanks for providing this guidance Rosie.  Despite it being dated 5/6/13, the SSWP have for over 2 years robustly defended its refusal to pay the EDP to my client.  So much so that the UT recently directed an oral hearing.  Just before it could be listed my client sadly died but the Dept have, I learned only this week, now agreed to pay 27 months arrears of EDP to his estate.

Edmund Shepherd
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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.

Is it not reflected in Ch 45 45890? It doesn’t place a duty on the DM but rather uses the word “may”.

Sara Leeroth
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North Somerset CAB

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Andrew - are you happy for your template letter to be used by other agencies - save us re-inventing the wheel as we are seeing more of these again

Welfare Rights Adviser
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Social inclusion unit - Swansea Council

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This is happening in Swansea. Our advice is an any time revision of the ESA decision on the basis of official error. The DWP have information that the claimant is in the support group when they make the conversion decision because they made it. It should therefore be clear that CESA is below the applicable amount for IRESA for that person including EDP. That should be enough indication of potential entitlement and the need for IRESA assessment.

Andrew Dutton
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Welfare rights service - Derbyshire County Council

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Sara Leeroth - 20 October 2014 03:36 PM

Andrew - are you happy for your template letter to be used by other agencies - save us re-inventing the wheel as we are seeing more of these again

Hi - sorry for the delay in replying - I’m perfectly happy about this.

I wrote another cheery missive to Mr Quinn at Derby Benefit Centre today - same ol’ subject!

Andrew Dutton
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Interesting update: on one case, where Support Group was awarded from 29/3/14, client has made a claim on ESA3 but via an agency that did not know the past history of the claim. He has been awarded the correct IRESA at last, but ONLY from the date of the ESA3 claim.

DWP have again failed to look at his situation from 29.3.14, and he is losing out on several months’ worth of EDP. Complaint made to DWP (last one was ignored however) pointing out that as this is a ‘migration’ case, they should have taken an active role in establishing IRESA entitlement, not left it to a distressed client.

This is the trap I feared people would fall in to - made to claim, no knowledge of the rules or guidance, get short-changed.

Andrew Dutton
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Update - no reply from DWP; also still awaiting reply from Director General of DWP about the structure of what I still regard as misleading letters.

adviceplus
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We just picked one up where claimant had been on Incap and Income Support and she had carer premium in assessment
Transferred in May 2012 to Support group of Contributory ESA and given EDP as well but no longer Carer Premium , underlying entitlement to Carers Allowance remained

There must be so many of these cases but I don’t think we would ever get a trawl , will let you know the outcome it should be full backdate because they already awarded some Income related ESA at the time of transfer   but nothing is ever certain I suppose ...

Andrew Dutton
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Got my reply - a posted in the thread concerning complaints - Stakeholder Groupc is to to look at the letters. They are still coming in, and just as inaccurate as ever. Let’s keep this going.

Dan_Manville
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Mental health & welfare rights service - Wolverhampton City Council

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It’s ironic that the NHS Business Services Authority is now bringing all these cases to our attention don’t you think?

Edit; being as a good handful of people are being fined due to dental charges & penalty charges being levied where they shouldn’t be I wonder whether this cause gains more gravity

[ Edited: 26 Feb 2015 at 11:52 am by Dan_Manville ]
Redscooby
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Welfare Benefits at Mary Ward Legal Centre, London

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On a similar issue - which I need help with - client claimed ESA (CB) only in June 2013.  ESA (IR) started a year later.  Client was in WRAG, we appealed and she was placed in the Support Group from October 2013.  DWP have only backdated the EDP to the start of her ESA(IR) claim.  I spoke to a team leader today and was told that as the client did not claim both CB & IR ESA at the time they can only backdate to June 2014 as EDP cannot be paid with ESA (CB). I’ve been successful with backdating for conversion cases but as this isn’t one where do we stand?

[ Edited: 6 Mar 2015 at 09:56 am by Redscooby ]
Pete C
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Just to say I have made an FoI request to the DWP about the arrangements that they may or may not have made to address the problem of underpaid IR ESA in the circumstances described in the first post in this thread

JoW
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That’s good. Very interested to see the response. I come across a case pretty much on a monthly basis. I am getting them backdated using the various arguments here and quoting back their guidance but it always takes a Mand Recon - even though I make the argument on the ESA3.

Given how widespread the problem is the DWP should be doing a major campaign to alert people and trawling their records for people who may have been underpaid.