ESA Tribunal win?

gypsy_janet

I had been on the support element of ESA for 3 years and was re-assessed in September 2017 and was deemed absolutely "fit for work" by the HCP. I then had to sign on job seekers while I went through the appeals process just to keep the roof over my head.. Before my Tribunal could be heard I was called in for another assessment in May 2018 due to being transferred onto UC and this time the assessment was terminated by the HCP as she falsely accused me of being verbally abusive. I heard nothing from the DWP or the JCP with regards to this assessment and no benefit advisors knew what to do. I only found out about the accusation of verbal abuse when I made a data subject application to the DWP.
I have now had my Tribunal hearing after waiting a year for it and the judge stated that he was placing me permanently on the support group and recommending that I never be re-assessed.
My problem is in that the last time that I made a successful ESA tribunal appeal and I won , I was given a substantial amount of money that was owed in back payments.
This time however I have been paid one week of back payment from the DWP and they have informed me that the rest should come from UC department.
The UC have said that they dont deal with ESA claims so my question is. If I am entitled to any back payment who should repay this ?
Any one else having the same problem ?

calcotti

I think ESA have to pay you what you were entitled to up the point where you claimed UC.

Your UC claim should be recalculated as if you had LCWRA from day 1 and they should pay arrrars arising from that.

Interested to know what others think.

Tomsdottir

I'm assuming you were getting income related ESA and not contributory ESA? (In other words, your ESA has not gone back into payment, topped up with UC, which would happen if you were on contributory ESA.)

You would be entitled to arrears of ESA for the period between the decision that you did not have limited capability for work (lcw) and the date you claimed UC. (The claim for UC "abolishes" entitlement to income related ESA.)

This might therefore have been arrears for a short period.

However, the decision that was made for your ESA means that you have become entitled to an increase in your UC. This is because you have now been placed in the equivalent of the support group for ESA: you get the limited capability for work related activity (lcwra) element included in your UC. This is worth an extra £318.76 a month.

Should it be backdated to the start of your UC award? It depends on whether you claimed UC immediately after losing entitlement to ESA. If so, then yes - it should be fully backdated. That's because the UC regulations say that you are "treated as having" lcwra for UC if you were in the support group for ESA and are transferring to UC. The relevant regulations are regs 19 and 20 of the Universal Credit (Transitional Provisions) Regulations, if you wanted to refer the DWP to these.

In your case, the fact that your ESA appeal was successful means that there shouldn't be any gap: your income related ESA award should now run right up to the start of your UC claim, so you are a transfer case, as described above.

If you are on contributory ESA, on the other hand, life is a lot simpler: you qualify to have the component included in your UC from the beginning of the award, regardless of whether there was a gap. (Reg 39 and Schedule 8, Universal Credit regulations) Your contributory ESA will still be in payment, but topped up with universal credit, including that extra amount I mentioned from the beginning of your UC award.

So what to do next? Via your journal, you can ask for your award to be increased because of the decision on lcwra, with effect from whatever period above applies to you. The DWP don't always get these rules right first time, so be prepared to challenge any refusal.

calcotti

Tomsdottir wrote: »

You would be entitled to arrears of ESA for the period between the decision that you did not have limited capability for work (lcw) and the date you claimed ESA.

I think the last part of this sentence is meant to read “..and the date you claime UC”.

Tomsdottir

Yes - clearly, not enough coffee is being drunk by me. Thanks! (Post corrected.)

Alice_Holt

Just to echo what Calcotti and Tomsdottir have said.

Following the tribunal the DWP should put you back to the same financial position, had they made the correct decision in the first place.

So, for the period until you claimed UC the backpay would be -
The money who would have received for the SG of ESA less the money you received whilst on JSA.

From the date you claimed UC, as Tom says, you should receive the additional LRWRA element.

gypsy_janet

Thank you guys you have been most helpful. Im not sure if Im contributions based or income related on benefits as when I first went on benefits I was self employed but that was back in 2010.
Unfortunately for me when I had to sign on JSA they had rolled out UC fully in our area.
Will establish on Monday all the facts I need and go from there.
Will keep you updated in case any one has a similar problem.