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ESA – migration cases – inaccurate IRESA assessments?
HI Charlie
In answer to question 2 every claimant who migrated between 1/1/11 and 31/12/14 is supposed to be being contacted regardless of what benefits they are on now - or indeed if they have died as DWP should contact next of kin.
In partial answer to question 1 I have an email address which I can give you if you have cases that need to queue jump because the circumstances are particularly difficult - but it is only to be used sparingly and not for every case you come across that is waiting to be contacted. Do direct message me if you want the email address and I can send it you.
Daphne
Thanks Daphne, very helpful. And thanks for offer but I don’t think - certainly so far - that we’ve had any cases with particularly difficult circumstances.
Does anybody know if these claimants have begun to be contacted yet? & if so, are there copies of the standard letter that is being sent available?
In answer to Charlie’s1st question - there’s nothing to stop anyone who is entitled to income-based ESA on top of cont-based requesting an ESA 3 at any time and requesting backdating to the date they became entitled to it. I’ve done it a number of times for clients.
Does anybody know if these claimants have begun to be contacted yet? & if so, are there copies of the standard letter that is being sent available?
According to a written answer in the House of Commons last week only 15,000 claimants have been sent the ESA3 so far. They’ve got a bit of a way to go if there’s 70,000 to contact and they’re a bit behind schedule since the started the beginning of April and are due to be complete by next April…
I don’t know about the standard letter though.
In answer to Charlie’s1st question - there’s nothing to stop anyone who is entitled to income-based ESA on top of cont-based requesting an ESA 3 at any time and requesting backdating to the date they became entitled to it. I’ve done it a number of times for clients.
Have you tried it since the caseload trawl started Helen? I was told they’d just be in the quue with everyone else a few weeks back so it’s seems a wasted effort to do an ESA3 when they’ll only get round to it eventually.
I have had clients who have had their ESA 3 processed since the trawl started. It’s taken a lot of chasing - but doesn’t everything!? Most of the clients I’ve helped have had fines for claiming free prescriptions, so waiting hasn’t been an option.
I sent in a normal ESA3 for a client at the end of June, not part of the trawl, and the client has had current entitlement amended to include EDP but no mention of arrears from 2013. Currently awaiting a call back regarding the arrears. Interesting that standard call backs are now 3 to 4 days as opposed to how it was previously 3 hours!
The 3-judge panel has now given an order in the JR case - granting permission and allowing the claim on the basis of a consent order agreed between the parties-
R (DS) v SSWP [2018] UKUT 270 (AAC)
Our understanding is that the SSWP position, prior to the order, was that SK v SSWP CSE/33/2017 (Upper Tribunal, 18 January 2018) prevented her from paying for the period prior to 21/10/2014. However, now that the 3-judge panel has said that case should not be followed then the way is open for her to start paying out the arrears for the earlier period.
Just a note of caution: Our view is that people with appeal cases pending would be well advised to get the SSWP to revise the decisions under appeal rather than let it go to a hearing- there is still a problem with appeal rights following R(IS)15/04 etc. as the FtT does not have jurisdiction to deal with these appeals given that where the SSWP has refused to revise on official error grounds more than 13 months after the original decision then the time for appealing runs from the date of that original decision (and will thus be more than 13 months ago and so the appeals are out of time).
[ Edited: 13 Aug 2018 at 12:45 pm by Martin Williams ]Thank you Martin Williams.
My case is at FTT - The Judge issued a direction requiring a response from the Sec of State to my submission that the case should not be struck out (my submission was mostly along the lines suggested on this thread). Sec of St had 21 days. So far the Sec of State has not responded. Should I be asking for a direction (and what would the terms of that direction be requesting?) in order to avoid the situation in your cautionary note?
Consent Order is also in process of being prepared regarding SK v SSWP case which is currently at Court of Session in Scotland and client has been advised that DWP will be paying full arrears.
Thank you Martin Williams.
My case is at FTT - The Judge issued a direction requiring a response from the Sec of State to my submission that the case should not be struck out (my submission was mostly along the lines suggested on this thread). Sec of St had 21 days. So far the Sec of State has not responded. Should I be asking for a direction (and what would the terms of that direction be requesting?) in order to avoid the situation in your cautionary note?
I think you need to write to ask SSWP to revise. The Ftt cant really direct them to do that… Although maybe it could ask her to indicate whether she was minded to revise within X days….
The decision in SK v Secretary of State for Work and Pensions [2018] UKUT 267 (AAC) has just been published - this is the decision that limited backdating to October 2014 which was acknowledged as containing an error of law in CPAG’s JR
[ Edited: 4 Sep 2018 at 11:01 am by Daphne ]My appeal for backdating to date of migration has been lapsed. Conversion decision revised for official error. We were waiting for a date for hearing, so I wrote directly to the Decision Maker at Chesterfield DRT who had prepared the appeal papers and she has written back. I had written to the Tribunals Service not long before that to request a direction, but this hasn’t been looked at yet.
My appeal for backdating to date of migration has been lapsed. Conversion decision revised for official error. .
and mine
My appeal for backdating to date of migration has been lapsed. Conversion decision revised for official error. We were waiting for a date for hearing, so I wrote directly to the Decision Maker at Chesterfield DRT who had prepared the appeal papers and she has written back. I had written to the Tribunals Service not long before that to request a direction, but this hasn’t been looked at yet.
interesting.
I have had two appeals due to be heard at ft lapsed (still waiting on the cash)
one at ut that had been sisted pending the other cases nothing yet. wrote to dm direct as you did a month ago and no response so have now written to ut for a direction notice request
most of these cases have now been open to my service for over a year…for just over £10 a week.
An update from stakeholders’ forum yesterday on the ESA trawl -
Following CPAG’s successful judicial review – supported by the evidence from this thread to the Public Accounts Committee – the DWP are now having to review a further 250,000 cases who may have payments due relating to periods prior to October 2014. This is in addition to the 300,000 they are already reviewing.
The DWP is still on schedule to review the original 300,000 by March 2019. This will include additional payments to claimants who have already been paid arrears that were limited to October 2014 and these are expected to be sent out between January and March 2019.
However, they do not yet have a timescale for reviewing the additional 250,000 cases.
DWP advise that discussions are ongoing about how to deal with claimants who may have missed out on support for mortgage interest or cold weather payments. However, it advises that passported benefits such as NHS costs and free school meals on dependant on the departments who administer those.