Ill health pension and IB/ESA

markmarkmark

I hope someone here can help with my question please.
Please forgive the long post but details are important.

I was moved from IB to ESA(Contributory) work group automatically without a medical (appeal for support group has gone in since was advised I meet the criteria).

I was told to go to first interview (at great pain and inconvenience) where was asked about other income. I told them about my small ill health pension from former employer and was told ESA to stop immediately and possibly IB has to be clawed back up to 20 years worth! because of this pension!

They said the relevant criteria was if my pension is a disability pension or a contributory pension so I have to show them the paperwork from my original pension. The original letter calls it an "ill health early retirement pension" from my former employer.


Now I was on Invalidity Benefit in 1994.

Then moved to Incapacity Benefit in 1995 with form IB50 which had no questions about other income (I have the photocopies of my claim).

Then moved to ESA in Mar 2013 with form ESA50 03/11 which had no questions about other income (again photocopies).

So at no point was I given the opportunity to declare my pension or told to do so.

I have googled around and found a link which I can't post yet
quote
Will my pension be disregarded under ESA?
Some Incapacity Benefit claimants, but not all, will have had any occupational or personal pension disregarded as income.

If this is the case for you, then your pension income will also be disregarded with regard to ESA(CB) on the assumption that you are successfully transferred to ESA and you maintain your claim.

The disregard forms part of the Transitional Protection available to claimants being transferred, and will last while the claimant remains entitled to ESA(CB) or until April 2020.
unquote

which seems to say my pension should be disregarded but cannot find this to quote in a DWP or official document. Does anyone know where this guidance comes from please?

I have also found the DWP decision makers guide chapter 56 section 56135 which says no pension deduction is due if you get the high care of DLA which I have for indefinite.

I phoned the jobcentre to tell them about these 2 cases but they were very unhelpful, did not want to know, and insist I come in again with my pension letter or ESA stays stopped. But to me it looks like the criteria described in the 2 cases make it immaterial what my pension is?

I have been sick with worry and can't sleep since the interview and don't know who to turn to. Can someone please advice over the source of the info in the italics, and what should I say when I have to go back?

I really think the jobcentre staff have no idea about the regulations and frankly have no confidence they can get this right according to the law, and show no sympathy to my condition, but I just don't know exactly how to get it put right.

Thank you for reading.

benefitbaby

I am sorry to hear you are feeling so stressed.
Invalidity Benefit (IVB) was abolished people were reassessed for entitlement to Incapacity Benefit (IB) there was transitional protection to ensure people were not financially worse off.

Then along comes ESA and everyone on IB has been (or is going to be) transitioned to ESA and again their are transitional protections to protect the amount of money received.

What is not clear to me is how your pension fits in with all of this. I cannot recall whether your pension was disregarded for IVB entitlement. In IB and ESA pension income is taken into account if it exceeds £85 per week.

If IVB entitlement was paid in full regardless of pension then you may have an appealable case.

When you moved to IB and then ESA your came under the rules for these benefits and so the pension should have been disclosed however as you rightly say the DWP do not send out claim forms when they transition you, they only send out IB50s or ESA50s which have nothing to do with pensions... so how would you know the relevance?

My argument would be that you cannot have failed to disclose a material fact (your pension) if you had no clue as to its relevance, or to put it another way... you cannot disclose something you do not know (this argument has been supported by case law). Benefit law only requires you to tell the DWP something which you know or could reasonably be expected to know would affect your entitlement. In your case how on earth could you know if it was never relevant for your original claim. This argument will only work if you disclosed your pension when you originally claimed IVB and it was deemed not relevant to your entitlement.

You nees to seek help from an experienced benefit adviser who can look back at the IVB rules regarding pensions and see if you have a case for appeal.

Hopefully there is a CAB or other advice agency with benefit or welfare rights advisers that can help. Good luck.

HOWMUCH

Hello Mark
My friend was concerned as he was previously on Invalidity Benefit then move onto Incapacity Benefit in April 1995 and so never paid any tax but now on ESA and may have to pay tax. We was looking on the internet to see if he would still be exempt via the old rules. We came across this document which has alot of info in it. http://www.dwp.gov.uk/docs/ib-reassessment-information-pack.pdf

I think the information on page 6 may be of help to you

benefitbaby

Unfortunately I don't think this will help the OP as this is not a taxable benefit issue.

The OP receives a pension which if it is above a certain amount will reduce the amount of IB or ESA payable, the DWP are saying "we did not know you had a pension and so now you have been overpaid" the OP is saying "you never asked me about income" because during reassessment for transition from invalidity benefit to IB and then ESA he was never sent or asked to complete any income details he only had to fill out IB50s or ESA50s (capacity for work forms).

What the OP needs are the IVB to IB transitional regulations to see what transitional protection he had.

skintmacflint

Ask for this to be checked by a manager. Transitional protection was given to those who were on Incapacity Benefit prior to 2001 when they transfer over to ESA.

Have a relative who has transitonal protection as detailed above, and it's all been checked by DWP. However when they first claimed Incap in 2000, they were asked to declare any pension. The question about pensions must have been introduced onto the form after 1994 .

westerby1

If someone was claiming Incapacity benefit before 6 April 2001, ill -health, private or works pensions had no affect on the amount they received. If their claim started after 6 April 2001 any pension over £85 per week would be taken into consideration and the benefit would be reduced by 50p for every £1 over the £85pw. However, if you receive the highest rate, care component ,of DLA even if the pension is over £85 pw it will not reduce Incapacity benefit payment.

As regards ESA (cb) a pension of up to £85 pw is disregarded, I do not know if receiving the high care rate of DLA means your pension is not counted as it did on incapacity benefit. If you are not in the support group (cb) ESA stops after 365 days and every single pound you have coming in from your pensions will be deducted from the ESA (ib)

markmarkmark

I'm very grateful for all the replies. It does look as if pension was disregarded for Invalidity Benefit, and in the transition to Incapacity Benefit in 1995 also disregarded. It should also be disregarded for ESA if you were transferred from IB automatically and had IB before 2001. The only difference is ESA is now taxed so you lose 20% if have sufficient pension to use up your personal allowance.

It is very worrying that Jobcentre staff do not know their own regulations - or that the computer is not programmed to tell them. They insist I go in with a pension letter to show ill health pension, even though this seems to be totally immaterial to the regulations. It remains to be seen what the decision maker will eventually say. In the mean time my esa is stopped on a whim.

I did have some sleepless painful nights but have calmed down a bit by now. Thank you again for taking the trouble to reply and be helpful, it restores your faith in human nature to have a little support and makes you feel you are not alone in your troubles.

bigjl

I have finally asked the DWP about my possible benefit entitlement and I also think their staff are under trained in regards those who actually planned for their future.

It does seem that things are made very complicated these days when they don't need to be.

If they just have me the benefit cap of £500 a week it would make things easier surely?

Seems my position is going to similar to the OP so I will watch this thread with interest.

Whilst I apply for ESA, must get income based (or rather number of hours and income based) as only that means I can apply for SMI, the. Apply for Industrial Injuries benefit, then you have to look at Council Tax which is now no longer a benefit but is now a discount where I live.

I was always a firm believer in stopping the benefits culture as it would in time make the country stronger and a better place to live.

But it does seem that the people who are actually finding themselves losing money are the very people that are meant to be assisted by these benefits and the malingerers have already got their plans sorted as they understand the benefits system at least as well as Job Centre staff.

Richie-from-the-Boro

bigjl wrote: »

I have finally asked the DWP about my possible benefit entitlement and I also think their staff are under trained in regards those who actually planned for their future.

It does seem that things are made very complicated these days when they don't need to be.

If they just have me the benefit cap of £500 a week it would make things easier surely?

Seems my position is going to similar to the OP so I will watch this thread with interest.

Whilst I apply for ESA, must get income based (or rather number of hours and income based) as only that means I can apply for SMI, the. Apply for Industrial Injuries benefit, then you have to look at Council Tax which is now no longer a benefit but is now a discount where I live.

I was always a firm believer in stopping the benefits culture as it would in time make the country stronger and a better place to live.

But it does seem that the people who are actually finding themselves losing money are the very people that are meant to be assisted by these benefits and the malingerers have already got their plans sorted as they understand the benefits system at least as well as Job Centre staff.

The following benefits aren't included when working out whether your total benefit income is more than the cap:

•Council Tax Reduction
•Pension Credit
•State Retirement Pension
•one off payments made by your local authority to help you out in a crisis
•Winter fuel and cold weather payments
•a short term advance from the DWP to help you out over a crisis until your first benefit payment
•non-cash benefits, for example, free school meals
•Statutory Sick Pay
•Statutory Maternity Pay, Paternity Pay or Adoption Pay.

markmarkmark

Back to the original subject, I received a letter telling me my ESA is stopped, but in the description of breakdown of the few weeks they paid it described me as being in the support group. My initial letter on transition from IB was definitely the WRG. Thus it seems my appeal for the support group was successful!!!, but since the ESA was stopped in the meantime I have not had an official letter to say anything about the appeal outcome, just this latest breakdown?

The difference is the top up for previous IB is slightly less, since the support amount is slightly more than the WRG amount, making the overall payment the same, so no arrears for those couple of weeks on ESA.

In the meantime I have put in another appeal for my pension not being disregarded under the transitional regulations from IVB to IB and IB to ESA. It remains to see how that now works out.

rogerblack

markmarkmark wrote: »

Then moved to Incapacity Benefit in 1995 with form IB50 which had no questions about other income (I have the photocopies of my claim).

Do you happen to have had the explanatory booklets copied also - or have retained them?
In some cases what you need to report is listed on those, and I can see this being argued by the DWP.