ESA – migration cases – inaccurate IRESA assessments?

Lorraine P - 03 April 2017 07:43 AM

I think this is probably the first time I’ve posted in this forum, (I’m normally more of an observer), however I’ve acquired a collection of these cases, and am interested in the experience of others.  I have clients nationally and with some of these cases the DWP have revised the award from the date of the conversion without any problem, and simply awarded arrears of benefit.  With other cases, they drag on for months, and when I chase the DWP, they tell me they’re dealing with the matter, but can never tell me when.  The latest DWP correspondence I’ve received for one of these cases states “the onus is on the claimant to make a claim for IRESA”, which I had to smile at.  It was either that or cry.  There doesn’t seem to be any consistency, rhyme nor reason in how the DWP are dealing with these cases, and the DWP don’t seem to have any idea what their own guidance says.  I’ve seen that NAWRA have taken this issue up.  Does anyone have an approach that is consistently working with cases like these?

I echo everything Lorraine has said, including this being a first post! 
I too have clients across England and Wales affected by this issue, and I have not found any consistency with the DWP response either.  Similar revision requests have resulted in quick decisions from three Benefit Centres but months of waiting for a response from four others. 

Lorraine P - 03 April 2017 07:43 AM

  Does anyone have an approach that is consistently working with cases like these?

I submit that pursuant to schedule 1 para 13(a) of the ESA (Transitional Provisions, HB & CTB) (Existing Awards) (no 2) Regulations 2010 you were under a duty to enquire whether xxxx was entitled to Income Related ESA at conversion and having not done so there are grounds for an any time revision on the basis of your ignorance of a material fact. DMG para 45414 refers. I would therefore request an anytime revision of the decision of xxx that ESA is payable from xxx as you were ignorant of his entitlement from the date he migrated.

works every time

Dan Manville - 03 April 2017 12:23 PM

Lorraine P - 03 April 2017 07:43 AM

  Does anyone have an approach that is consistently working with cases like these?

I submit that pursuant to schedule 1 para 13(a) of the ESA (Transitional Provisions, HB & CTB) (Existing Awards) (no 2) Regulations 2010 you were under a duty to enquire whether xxxx was entitled to Income Related ESA at conversion and having not done so there are grounds for an any time revision on the basis of your ignorance of a material fact. DMG para 45414 refers. I would therefore request an anytime revision of the decision of xxx that ESA is payable from xxx as you were ignorant of his entitlement from the date he migrated.

works every time

I’d love it if our clients had the benefit centre that you are using Dan - we get there in the end with what is in essence the approach you quote, but it is like walking through treacle the length of time it takes. In most cases it ends up going to tribunal before the appeal decision-maker sees sense. This is despite mentioning all these points plus others right from the start.

Got two more of these cases today…...

I spotted another one yesterday. Arrears will be a sniff over 10k.

My template letter is less concise and efficient than Dan’s :-)

In each of the cases I’ve had it’s taken about 3 months from sending the ESA3 for DWP to issue arrears - none have had to go to FTT tho. I’m waiting for one payment at the moment where I think 4 years of EDP plus 6 months of SDP = about 4,800.

Quick update - I have written to NHS Business Services Authority to point out that this has an effect upon their side of things too, and I’m pleased to say that I just got a letter saying that the NHSBSA policy team responsible for Eligibility Checking will take a look at it.

Excellent Andrew - keep us informed how things progess…

Dan Manville - 03 April 2017 12:23 PM

Lorraine P - 03 April 2017 07:43 AM

  Does anyone have an approach that is consistently working with cases like these?

I submit that pursuant to schedule 1 para 13(a) of the ESA (Transitional Provisions, HB & CTB) (Existing Awards) (no 2) Regulations 2010 you were under a duty to enquire whether xxxx was entitled to Income Related ESA at conversion and having not done so there are grounds for an any time revision on the basis of your ignorance of a material fact. DMG para 45414 refers. I would therefore request an anytime revision of the decision of xxx that ESA is payable from xxx as you were ignorant of his entitlement from the date he migrated.

works every time

Thank you for this Dan.  I do have a template that I am using, although not as concise.  I might use this.  I find that some of the benefit centres respond very quickly, and then others just drag things on for months on end, and don’t even respond if a complaint is pursued. The most recent case I picked up this week involves a case where the claimants appointee has already written to the DWP a year ago, and still no response.  I wondered if the problems might just be relating to specific benefit centres.

I referred in an earlier posting to a report that we sent in to our local MPs - a copy is attached, which may be helpful to others. 

A colleague points out that not only are the letters terrible, but they are re-issued every year and so compound the problem year in year out.

Update on my case that was unsuccessful at appeal despite quoting CE/277/2014 and my request to UT was then accepted. The DWP have requested additional time to respond which has been granted! Don’t know if this means that they are really looking at challenging it or does it mean they are hopefully looking again at client’s case!!

Andrew Dutton - 18 April 2017 10:41 AM

I referred in an earlier posting to a report that we sent in to our local MPs - a copy is attached, which may be helpful to others. 

A colleague points out that not only are the letters terrible, but they are re-issued every year and so compound the problem year in year out.

Not only are the letters terrible but they are often utterly meaningless too. Had a client in this morning who was virtually suicidal as he (quite understandably) thought that his £102.15 ESA +WRAC payment was being cut to £71.70 p/w as a result of receiving the attached.

£71.70?? This was 2013-14 rates. When I rang DWP to query, I was told that “he could have been entitled to that amount if circumstances were different”!

In the dreaded last page as daft as that - or is it even more confusing? As for DWP’s response…..sigh of despair…...

Yet another case has landed here, nasty and complicated (couple, both disabled, both transferred from IB to ESA, one another’s carers, one or two SDP should be awarded, but told no IRESA payable) and involving NHS fines - I have had no more contact from NHS about this.

I’m getting cross again…..

Someone on the helpline just said to me “they’ve realised they’ve missed a lot of these” just now.

an absence of excreta comes to mind…

Dan Manville - 04 July 2017 01:30 PM

an absence of excreta comes to mind…

And a late Victorian fictional detective?