Request for a Mandatory Reconsideration

My client was not paid any ESA when he tried to claim in 2012 because the DWP said he failed the HRT. His ESA claim continued however, paying only NI credits.

I started working with the client this year, and as he wasn’t receiving any money it didn’t occur to me that he might already have an active ESA claim. Therefore, we submitted a new claim for ESA, which prompted a reply from the ESA which didn’t mention the new claim as such but confirmed that he wasn’t entitled to any money from his current claim. Here are the first few lines of the letter (dated 28/04/14):

” We have looked at your claim again following a recent change.

We cannot pay you ESA from 13 April 2012.

You are not getting any more income-related ESA.

We cannot pay you because you have not paid, or been credited with enough NI contributions.

We have used the tax years ending 5 April 2010 and 5 April 2011”

I requested a MR within a month of this letter arguing that even if the client wasn’t entitled to CB-ESA, he should have been awarded IR-ESA in 2012 because he had a permanent right to reside. I submitted loads of payslips and P60s to try and prove the five years of continuous legal residence needed to gain a permanent R2R.

I have proof that the DWP received the docs but they appear to have lost them internally. I’m putting in a complaint about that but luckily I have copies of all the docs, which I’m going to use to resubmit the MR request until they have found the original docs.

Basically, I’d like some suggestions on whether the basis of my MR request is sound. The original HRT decision was made in 2012, but my MR request is against a letter dated in 2014. Assuming that I can convice the DWP that he already had a permanent R2R in 2012, would the ESA be backdated to 2012? Although I sent the MR request within a month of the decision on the letter, the letter appears to be affirming the decision that they originally made in 2012. Has the DWP inadvertently done me favour by sending a new letter in 2014 about a decision that was made in 2012 (because it allows me to request a MR within the time limit), or will they be able to refuse to issue an MR Notice because the decision was originally made in 2012?

Also, I’m not sure if this is relevant, but it has puzzled me a bit: As well keeping his ESA claim active and paying him NI credits only, the DWP have just confirmed his placement in the WRA Group for another two years. He also attended a WCA appointment a couple of days ago (although I’m yet to find out what they said to him in the WCA). I spoke to someone in the WCA team at the DWP yesterday, and they confirmed that he wasn’t receiving any money from ESA because he failed the HRT and that the only benefit of him still having an ESA claim was the fact that he is receiving NI credits. I don’t suppose the fact that he’s been receiving NI credits for two years will help him get CB-ESA if we can’t get him IR-ESA?

I was surprised that his ESA claim, with NI credits only, has been allowed to continue despite the fact that he failed the HRT. The DWP person I spoke to yesterday confirmed that he still has to meet all the criteria of the WRA Group despite not receiving any ESA payments. I thought that failing the HRT would lead to the ESA claim being closed completely.

No if you fail the HRT your applicable amount is nil but it is still to all intents and purposes a claim in payment, even if it’s NICs only.

You have, to all intents and purposes requested supersession of that claim on basis of ingnorane or mistake as to material fact. I don’t think you will see a payment back to 2012 as it’s much too late to challenge that now however they could supersede it from the date they received the new info. Your MR is against their refusal to supsersede.

You could try for an anytime revision but if they refuse that there’s no right of appeal so probably best (to my mind and people might call me on it) to maintain the supersession request.

One of the NI conditions looks to contributions actually paid so ongoing credits are unlikely to help if he’s no work history.