ESA – migration cases – inaccurate IRESA assessments?

I have - for what it’s worth - also raised this via operational stakeholders. Will let you know when any response…

Please keep us updated Daphne. If we’ve come across over two dozen cases what does that mean when you look at it nationally!

Just had this decision from a tribunal.

Quoted the DM guidance in the submission stating it was an official error that appellant wasn’t invited to claim IB ESA on migration to ESA from IB.

As far as I have read previously claiming IS along with IB has no relevance and all claimants should be assessed for IB ESA entitlement at migration.

Any input would be gratefully received!

Daphne - 23 September 2015 03:40 PM

CE/277/2014 available here - http://www.rightsnet.org.uk/welfare-rights/caselaw/item/legal-requirement-for-conversion-decisions-from-incapacity-benefit-to-esa-t

full decision here - http://www.osscsc.gov.uk/Aspx/view.aspx?id=4566

I think you have to go back to this decision - clearly says secretary of state must consider both contributory and income-related ESA on conversion decision - nothing to do with whether getting just IB or IB and IS.

I would request leave to appeal on error of law quoting that decision

Beat me to it Daphne. I use this decision all the time, with positive results

Anyway, it should be treated as a supersession, rather than an appeal perhaps?

I sense an upper tribunal decision may throw this out

Latest one:

Your Living Expenses                                     £0.00

Extra Money because you are in the Support Group £36.20

Which gives a total income-related amount           £36.20

However because you are entitled to CESA we will pay you £112.05

..........................aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaarg…..............................

It’s beyond belief isn’t it?

I’ve had several clients who have ended up with NHS fines due to ticking the ‘IR ESA’ box on prescription forms when they actually have CB ESA awards (but thought they had IR ESA awards due to the confusing and conflicting nature of their ESA award letters).

On the inaccurate assessment issue, picked up a client this week who has missed out on EDP and SDP since migration from IB (in youth) to ESA for the past three years.

benefitsadviser - 10 June 2016 11:11 AM

£3200 underpaid for 4 years. Bugs me that DWP come down like a ton of bricks on overpaid benefits, with civil penalties etc, yet when underpaid my clients dont even get an apology

Most of mine have got SDP entitlement as well. I’m waiting for one that converted mid   ‘13 to come through at the moment and arrears to date will be around the £12k mark; 5 figure arrears payments have not been a rarity.

Tony Harrison comes to mind…

I was desperately trying to avoid an SDP overpayment with a client

He got income support since 2002 and DLA MRC then, but as he was living with family until june 2015 no SDP

SDP available when he moved out on his own, so we went for SDP from then.

DWP wanted more and more info, as they needed to know what he was doing and where he was living since income support claim started..

I posted copies of tenancy agreement from june 2015, got statements signed confirming he lived with family beforehand and therefore no sdp entitlement.

Still isnt good enough for them. They still say they cant determine when SDP entitlement began, even though ive sent tenancy agreement and full details of everything. They would be the first to yell if they paid him too much backdate…..

Its hardly rocket science….....

This is my response from stakeholders -

I have now spoken with colleagues working on the Health and Work Portfolio who have advised that Work has been undertaken to ensure claimants have the correct premiums awarded at the correct time.
As the last claims to be affected have already started the journey, it is late in the process to issue guidance. However if there is any particular area/ district that seems to be standing out as at fault or even a couple of examples can be provided we can investigate and issue a direct reminder to Benefit Centres as appropriate.
If you are able to provide these details they will be passed on to colleagues to investigate.

Please can anyone who has examples please direct message me with details and I will pass it on to them - it seems to me that they don’t really believe it’s happening

On conversion date do DWP require ESA3 to assess ESA(IR) entitlement?

If they say they told client to complete ESA3 and client hasn’t done so is that the get out of jail free card? Have a case just now where DWP state they phoned client to explain process and then it was explained in letter posted Feb 14 however they have not provided copy of letter issued!

Well Tribunal Judge decided to accept that because DWP recorded they issued a letter to the client to invite IR claim then they have offered this to client despite client advising that letter not received!

“Well Tribunal Judge decided to accept that because DWP recorded they issued a letter to the client to invite IR claim then they have offered this to client despite client advising that letter not received!”

I’m at a re-listed appeal next week after a particularly dim Judge on the first appeal backed the DWP’s argument which is the same as the one you describe. District Judge set it aside and is sitting on the re-hearing themselves. Heading out the office now but back in on Friday. I can e-mail you my argument over then if you would like.

Hi Mick, I have pm’d you. Happy to accept any advice you have.

FTOS- Hope the e-mail came through.