ESA backdating if they told me wrongly I couldn’t claim it?

nicdigby

Hi
I’ve just called DWP about claiming ESA.
When I first got sick with cancer I called them and they told me I wasn’t entitled to it. That was in 2014. When the cancer came back I called them again and they said the same thing, That was in 2016.
(I also got told the same thing by Macmillan benefits line and by the entutledto and turn2us websites).
I now know I was told wrongly, as I was a care for my disabled child from 2010 claiming carers allowance.
What can I do? I have missed out on thousands of pounds of contributory ESA over the years because the DWP advisors (and others) told me I had to have been working in the previous two tax years to claim it. Nobody ever said “unless by any chance you were a carer claiming carers allowance,”
Is there anything I can do to try to get the money now? Who could I write to to complain? Or will it be a waste of time?
Thanks for your help

calcotti

Some advice here https://www.citizensadvice.org.uk/benefits/benefits-introduction/problems-with-benefits-and-tax-credits/complaining-about-the-service-you-ve-received-benefits-and-tax-credits/

You will not be able to get a backdated claim. In therefore if you could get a complaint uphold you could seek compensation. Fundamental difficulty you will have is evidencing that you were misadvised.

Unfortunately a lot of DWP staff are unaware of the circumstances that allow a relaxation of the normal two year period for meeting the NI contributions requirement.

It is also possible that although you were entitled to claim contribution based ESA and to be automatically placed in the Support Group following the assessment period your claim might not have continued after your first cancer treatment ended. You might have been found fit for work or moved into the WRAG in which case your ESA could have become time expired. As a result working out what you have missed out on would be difficult to do.

[Deleted User]

Its a difficult one, I would advise having a word with your MP see if he/she can help?

nicdigby

Thanks Calcotti, I had already thought it would be impossible to prove I was wrongly advised as it was by phone, although when I rang this week to claim the advisor wrongly informed me again I wasn’t eligible.

calcotti

nicdigby wrote: »

Thanks Calcotti, I had already thought it would be impossible to prove I was wrongly advised as it was by phone, although when I rang this week to claim the advisor wrongly informed me again I wasn’t eligible.

That is shockingly bad. If you were receiving CA from April 2017 to March 2018 and have paid a year of NI at some time in your life you are eligible for new style ESA. If you are having or recovering from radiotherapy/chemotherapy you are entitled to be automatically placed in the Support Group and get the additional money from the 14th week.

I think regardless of whether or not it will benefit you personally it is worth raising this with your MP. I don’t blame DWP staff themselves, these kind of errors/misinformation arise from a lack of training.

The Employment and Support Allowance Regulations 2013

Relaxation of the first contribution condition

9.—(1) A claimant who satisfies any of the conditions in paragraph (2) is to be taken to satisfy the first contribution condition if—

(a)the claimant paid Class 1 or Class 2 contributions before the relevant benefit week in respect of any one tax year; and

(b)the claimant has—

(i)earnings equal to the lower earnings limit in that tax year on which primary Class 1 contributions have been paid or treated as paid which in total, and disregarding any earnings which exceed the lower earnings limit for that year, are not less than that limit multiplied by 26; or

(ii)earnings factors in that tax year derived from Class 2 contributions multiplied by 26.

(2) The conditions referred to in paragraph (1) are that the claimant—

(a)was entitled to a carer’s allowance in the last complete tax year immediately preceding the relevant benefit year;. . .

TELLIT01

It used to be a case that you needed evidence in writing from DWP which wrongly advised you in order to a claim in this situation. I don't know if that has changed so that evidence from a telephone call log would suffice, or how long telephone logs are held for.
As others have said, I would think your best route now would be via your MP.

benidorm59

You have been claiming carers allowance since 2010. This gives you a National Insurance credit 3. You couldn't have been working full time because there is a limit on how much you can earn on Carers. Sorry to hear In 2014 you got cancer and rang, They would have checked Nirs for 2012 and 2013 and seen a record of class 3 stamps paid by Carers Allowance this means you wouldn't have qualified for ESA Conts and same again in 2016 when you rang. However you could have claimed either Income Support or Esa Income based benefit, if you fitted the criteria, eg savings under 16k or partner works over 24 hours etc. I don't know how you have managed all these years on just Carers Allowance. As said maybe have a chat to your MP good luck with it hope you get some answers There should be a record of phone calls these are held on their CAM system ask for a SAR a copy of all your records

Alice_Holt

May be worth requesting a SAR from the DWP to see if your telephone calls are documented.
https://www.gov.uk/guidance/request-your-personal-information-from-the-department-for-work-and-pensions

If you can get proof this way, I would suggest (per calcotti) trying a complaint, and financial redress for maladministration -
https://www.gov.uk/government/publications/compensation-for-poor-service-a-guide-for-dwp-staff

Definitely get your MP involved - DWP training is shockingly bad and call handlers frequently give incorrect gatekeeping "advice" to the public (as you have now discovered 3 times). Get your MP not only to intervene with the DWP but also to raise your issue with the DWP S of S (Amber Rudd).

calcotti

benidorm59 wrote: »

You have been claiming carers allowance since 2010. This gives you a National Insurance credit 3. You couldn't have been working full time because there is a limit on how much you can earn on Carers. Sorry to hear In 2014 you got cancer and rang, They would have checked Nirs for 2012 and 2013 and seen a record of class 3 stamps paid by Carers Allowance this means you wouldn't have qualified for ESA Conts

This is incorrect in two ways and is exactly the mistake the DWP have made.

Please refer to the extract from the regulations quoted in my earlier post. For someone who has been claiming Carer's Allowance prior to becoming ill an application for ESA the normal regulation is relaxed and they can (and should) look at any year to see if the Class 1/2 contributions condition has been met - not just the last two years.

The second contribution requirement is met because the NI credits for CA are Class 1 Credits not Class 3.

calcotti

OP. May be worth adding that what you have 'missed out on' if you have been claiming CA throughout this period is the difference between ESA and CA, not the full amount of ESA. This is because you cannot be paid both CA and contribution based ESA as they are both earnings replacement benefits and are known as overlapping benefits. At today's rates the difference is £47.15/week (£110.75 - £64.60).

(I infer from your posts that you have never qualified for means tested benefits.)

TELLIT01

calcotti wrote: »

I think regardless of whether or not it will benefit you personally it is worth raising this with your MP. I don’t blame DWP staff themselves, these kind of errors/misinformation arise from a lack of training.

Very true. We were given very little, if any, training on how to check HMRC records for NI contribution when I did my ESA training. Many staff didn't have access to that system at all and had to chase around other people to get them to look up info. When people are being pushed to complete a number of claims per day is when time consuming checks are missed, either accidentally or simply to ensure they hit numbers.