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  • FIRST POST
    • butterflies56
    • By butterflies56 19th Dec 17, 3:10 PM
    • 30Posts
    • 23Thanks
    butterflies56
    DWP errors and cut off date for backdated premiums
    • #1
    • 19th Dec 17, 3:10 PM
    DWP errors and cut off date for backdated premiums 19th Dec 17 at 3:10 PM
    With a great deal of help from Epitome, I filled in an ESA3 form and backdated it to Oct 2012
    As I had been migrated from IB to ESA(cont) and Support Group at that time but did not receive and ESA3 form in 2012.

    I met all the criteria for Enhanced Disability Premium but never received these payments.
    Even though the payments showed up on my Housing and council Tax Benefits letters.

    Anyway, fast forward to this week and I have received a letter from the DWP and payment for backdated EDP to Oct 2014. So 3 out of 5years payments received.

    The DWP quote..."By law we are unable to pay you for any period before October 2014 (Section 27 of the Social Security Act 1998).

    I did some research on this and have found that the DWP are using "Error in Law' to get around not paying people(these are the 75.000 claimants who have been underpaid) the EDP(in my case) and probably SDP in other cases.

    I have never had to appeal anything before with the DWP but I am going to appeal this decision.

    My question is....How do I appeal?
    Do I just write to them and say I am appealing the decision or do I need to fill in a particular form?!
    Thanks in advance for anyone's help!
Page 2
    • speedfreek1000
    • By speedfreek1000 31st Jan 18, 10:26 AM
    • 325 Posts
    • 260 Thanks
    speedfreek1000
    If you haven't already you might want to follow developments in this thread

    https://www.rightsnet.org.uk/forums/viewthread/5928/

    As they brought up the issue and also believe that the DWP are incorrectly applying the law by adopting a cut off of October 2014.
    • epitome
    • By epitome 31st Jan 18, 11:10 PM
    • 3,127 Posts
    • 1,895 Thanks
    epitome
    I will reply in different colour to the points I wish to...



    "Your Mandatory Reconsideration Notice

    You or someone who has the authority to act for you. asked us to look again at the decision we
    sent on 12/12/17.

    We have taken into account all the information available.
    We have not changed our decision.

    An explanation of our Mandatory Reconsideration decision is set out below.


    Mandatory Reconsideration - Employment and support Allowance Income
    Related (ESAIR)
    On 8/12/12 a decision was made to convert your award of Incapacity Benefit {lB) to
    Contributory Employment and Support Allowance (ESA(C)) only.

    You were issued with form ESA1 <it should say on what date the ESA1 was issued> (which was treated as an ESA3 review form) to
    enable you to provide information so we could consider entitlement to Income Related
    Employment and Support Allowance (ESA (IR). We received the completed form on
    27/9/17.

    On 12/12/17 a decision was made to award ESA (IR) from 21/10/14.

    On 2/1/18 you asked us to look at this decision again and for you to be awarded ESA
    (IR) from 26/12/12 when your award of IB was converted to Contributory ESA.

    I have reconsidered this decision. As a result. I have decided that the decision not to
    award ESA (IR) from the date your award was converted to ESA is correct in law.

    When an award of IB is converted to ESA. the law requires a calculation of the amount
    of ESA you would be entitled to as if you had made a claim for it. This requires
    consideration of whether you are entitled to either Contributory or Income Related
    ESA or both. The decision made on 8/10/12 did not consider entitlement to income
    Related ESA and was therefore erroneous in law.

    However, the principle that a claim for ESA requires full consideration of both
    Contributory and Income Related ESA was established in a decision of the Upper
    Tribunal dated 21!10i14 (this is known as the lead case). The law requires that in other similar cases, where a decision is changed following a lead case. the other decisions to be changed are not erroneous in law for any period before the date of the Upper Tribunal decision on the lead case.

    I therefore cannot change the decision dated 12/12/17 so as to award ESA (IR) from 26/12/12.

    My intial reply would be...And you can send this to Man Recon again for them to give you a further response.

    Dear Sirs,

    You have agreed that the DWP failed to follow the law, <I still have not found the exact law, but it is not important> in 2012 when I was migrated from IB to ESA.

    The lead case that you refer to was that of awarding ESA IR due to supersession, appeal or revision backdated to the effective date of the revision.(this reply is not finished, as I say I am busy with other things and I will have to come back to edit this post later

    You should also be saying to them..

    You have agreed that I have been paid arrears of more than £5000 and covering a period of more than 1 year due to DWP error. DWP policy requires such cases to be sent to the DWP special payments unit for compensatory consideration... I mentioned this in my Mandatory Reconsideration letter and I asked in that letter for compensation to be considered equal to the amount of Income Related ESA that the DWP have witheld from me that I would otherwise have been paid from 26/12/2012 - 20/10/2014 were it not for the DWP error that took place in 2012 and for the Upper Tribunal "Lead case" that you refer to, the decision of which, bars you from paying arrears of ESA IR before 21/10/2014.

    To clarify.. if the DWP cannot pay "arrears of ESA" before this date then I ask the DWP for compensation to be paid to me, equal to the amount of the barred ESA IR arrears 26/12/2012 - 20/10/2014.
    I also request that general compensation payment is considered in line with DWP policy, on the basis that I have already been paid a substantial amount of arrears due to DWP error.
    Please confirm that my case has been sent to the DWP compensation/Special payments unit as is required by DWP policy and as I have previously requested.

    Last edited by epitome; 01-02-2018 at 1:09 AM.
    • butterflies56
    • By butterflies56 5th Feb 18, 7:10 PM
    • 30 Posts
    • 23 Thanks
    butterflies56
    If you haven't already you might want to follow developments in this thread

    https://www.rightsnet.org.uk/forums/viewthread/5928/

    As they brought up the issue and also believe that the DWP are incorrectly applying the law by adopting a cut off of October 2014.
    Originally posted by speedfreek1000
    Hi speedfreek
    Thank you very much for the link
    I have been following that on rights net and waiting to see what happens
    I also have done Appeal and just waiting for the outcome which I believe could
    take months
    Thanks again
    • butterflies56
    • By butterflies56 5th Feb 18, 7:14 PM
    • 30 Posts
    • 23 Thanks
    butterflies56
    Hi Epitome

    Thank you very much again for taking time to reply

    I will use all the info in your letter

    I have also sent off Appeal which will probably take quite a long time

    Thanks again for your help. it's very much appreciated!
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