Converted ESAc changed to ESAir following revised 2003 IB decision

Hi folks

I am currently working on an appeal case and would be grateful for people’s thoughts.

Claimant in receipt of IB in his last spell from June 2003. Converted to ESAc (after initially failing medical but then being placed in SG following additional evidence submitted) March 2012. Claim continuous throughout period.

In 2013 his ESAc claim is subject to a random audit. They find that he should never have received IB in the first place as he didn’t meet the conts conditions and the DWP revise the June 2003 IB decision. They subsequently stop his ESAc award as they deem he should never have been converted to ESAc in the first place. They accept that it is official error and write off the overpayment. They state when awarding him IB in June 2003 they erroneously linked him back to a previous IB claim ending in February 2003.

He immediately made a new claim for ESA in May/June 2013 when his ESA was stopped. This new ESAc claim was refused on the grounds he had not paid enough contributions. Claimant has a partner who is S/E and receives WTC so the ESAir is problematic (he has had periods of being a single claimant since although is now back as a couple again, but this is just for context).

I am aware that claims can be revised anytime in cases of official error, but I’m clutching at straws regarding whether it follows that his ESAc should be stopped given that at the point of conversion he was receiving IB. Any thoughts on any aspect of this would be welcome.

As an aside I am looking to see whether the SoS has even adequately proved their case that he did not meet the conts condition, but it’s looking likely.

Thanks

Bump….. 😊

I like your thinking, but in order to create the OP (which was then written off) they would have had to carry out an any time revision of the 2003 decision. Which means that looked at post the revising decision he no longer had an IB claim to convert to ESA.

Is his partner’s self employed business such that he can work with her (in whatever capacity) for 16 hours a week and get the disabled worker element added to her WTC claim, via ‘fast track’ for the first year and then via any other qualifying benefit which applies?

Lewis77 - 09 June 2014 10:25 AM

I am aware that claims can be revised anytime in cases of official error, but I’m clutching at straws regarding whether it follows that his ESAc should be stopped given that at the point of conversion he was receiving IB.

It probably doesn’t help your case that the ESA conversion regs say they apply to a person who is “entitled to” an existing award, rather than to someone “receiving” one.
(SI 2010 No. 1907, reg 3)

As a side issue, maybe worth looking into whether any joint tax credit award which was subject to an income taper might now be revised in the clients’ favour, by removing the “non-existent” taxable social security benefit? (I’m not sure about this, and for tax credits it seems official error only remains in scope for 5 years, see CPAG p1488).