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ESA - contribution based with income related top up
Hi,
client made a claim for cb ESA 4 years ago, would have been eligible for ir ESA as well (partner receiving CA) but this was never assessed. Completing ESA3 now but not sure on whether we can request backdating. Know there was some case law on conversion from IB to ESA to the effect that both cb and ir ESA should be treated as one benefit (official error / any time revision) but can’t find anything on what happens if new claim made for ESA but ir not considered. Can we argue same grounds for any time revision?
Any help appreciated
Thanks
The distinction between your client and the conversion decision cases is that your client will have most likely filled out a claim pack which will have specifically asked if they wanted to make a claim for CB only or CB + IR. If the claimant specifically elected to limit consideration to CB only, they can’t now claim it was official error for the IR element not to be considered.
If the claim was for both but the IR element was ignored, or if some sort of culpable shenanigans led to your client ticking the wrong box, then official error seems more likely.
Problem is client can’t remember what he did, was pretty unwell at the time. Seems pretty difficult now to argue he did make a claim for income related without proof. Not sure if DWP could provide original claim. I know I’ve requested paper copies of forms in the past but not sure if it was back that far…
Might be worth requesting it or doing a subject access request. The form or a summary of it would presumably still exist. I think its very unlikely to turn up anything improper but it could be worth a lot to your client if it did.
If the claimant specifically elected to limit consideration to CB only, they can’t now claim it was official error for the IR element not to be considered.
Is this right? I’d have been proceeding on the basis that ESA is a single benefit, and ‘backdating’ need not enter into it as we are only looking at entitlement after the initial date of claim. E.g., see CE/4181/2013:
“if a person says on a claim form that he or she wishes to ‘claim’ only one element and a decision is made in respect of that element, it seems to me that it must be open to the claimant, if he or she thinks that it was a mistake not to ask for both elements to be considered, to raise the question of entitlement to the other element by way of an application for a revision under section 9 ‘on any ground’ ...”
.. or does the above case allow for the claimant to just “waive” their right to the full entitlment?
[ Edited: 14 Mar 2016 at 11:52 pm by Jon (CANY) ]I think you are right Jon insofar as how things happen in terms of the legislation. That would mean that a client who ticked the “CB-only” box could ask for an any grounds revision to have his IR entitlement looked at. Presumably an ESA3 would get sent out and he would go from there.
The problem is that the client is out of time for an any grounds revision and is going to need to establish official error for an any time revision. I don’t think you could argue that it would be official error for the DWP to fail to investigate a claimant’s financial entitlement when he had specifically indicated that he did not think it was relevant. In the conversion cases the DWP had made that decision without consulting the claimants so there was a clear error.