Widow/Survivors pension and ESA

seamus84pea

My husband died in 2018 and I was/am in receipt of ESA Contribution based. When he died I contacted DWP to inform them I wished to claim Bereavement Support Payment and to tell them I would be in receipt of a widows pension from his employer. At that time DWP stated to me me that my Widow/Dependants pension would not be taken into consideration under Part 9 Regulation 68 which[FONT=&quot] says that any pension payment made to a claimant as a beneficiary on the death of a member of any pension scheme will be ignored.
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[FONT=&quot][FONT=&quot]Months later I got a really snotty letter from DWP saying I had not informed them of my "occupation" pension. I wrote back and told them I HAD informed them, but it was not an occupational pension it was a widows pension - I got no response from them. Now they have contacted me and said that my "occupational pension" will reduce my ESA. The pension people have confirmed to DWP that is is a widows pension and not a pension paid to me as an ex employee of theirs, but still the DWP keep insisting it is a pension I earned as an employee. It doesn't seem to matter what paperwork I send to them to prove it is a widows pension. It looks like I will have no option to appeal, even though they are 100% in the wrong. I can't believe that they are insisting it is my pension in the face of so much supporting evidence to the contrary. Any advice anyone? [/FONT][FONT=&quot] [/FONT][/FONT]

[Deleted User]

If you can tear him/her away from the brexit farce I would suggest involving your MP, its amazing how sometimes they can help with problems like this.Maybe a visit to their surgery or an email

https://www.writetothem.com/?gclid=EAIaIQobChMIvdjmjaC-4QIVCL7tCh2HagKfEAAYASAAEgLxxvD_BwE

calcotti

Venison's suggestion is a good one. However i recommend you also submit an appeal. You obviously have a good understanding of the situation and the request for a mandatory reconsideration (and subsequent appeal if necessary) can be quite simple, something along the lines of:
I have informed you that I am in receipt of a widow's pension and I have provided evidence of this. You have incorrectly treated it as an occupational pension. This is wrong in law - see the ESA Regulations 2013 Part 9 Regulation 68(a) (or ESA Regulations 2008 Part 9 Regulation 75(a)). My widow's pension should be ignored, I request that my award is revised accordingly.

Note that which regulations apply depends on which type of ESA you are receiving. If you are getting new style ESA then the 2013 Regulations apply but if you are getting legacy ESA I believe the 2008 regulations still apply.

Please note that a request for a mandatory reconsideration needs to be made within one month
https://www.citizensadvice.org.uk/benefits/benefits-introduction/problems-with-benefits-and-tax-credits/challenging-a-benefit-decision/challenging-a-dwp-benefit-decision-on-or-after-28-october-2013/challenging-a-benefit-or-tax-credit-decision-asking-for-a-reconsideration/

sportsarb

They are 100% wrong so MR, appeal and complaint seems to be the way to go on this.

I would complain regardless of whether they set it right before it gets much further along the line too. It usually ends up, at least where I was, that the person that processed it wrong gets corrected on what they are doing whereas a lot of times another staff member will just think they can't be bothered with the fuss of correcting a colleague and do it themselves and the other person never learns.

Alice_Holt

This sounds rather an extreme option, but may produce a quicker outcome than the appeal.
A pre action judicial review letter.
Basically take your appeal (I would certainly do an appeal), and amend the format to fit the requirements of a pre action judicial review letter.
Include your reference to the relevant legislation, and attach a copy of the Decision Letter and other relevant documentation from the DWP.
Pro-formas can be found on the CPAG and Shelter websites.
http://www.cpag.org.uk/content/judicial-review-pre-action-letters

The advantage is that it goes straight to the DWP legal team, who have to reply within 14 days.
It is most useful when the legal position is clear (not a matter of judgement by a DWP decision maker), and the DWP are not applying the law correctly (as seems the case here).
It gets a much quicker resolution than a MR and then an appeal, as sometimes appeals can drag on until the DWP DM consults their legal team / or it goes to the Tribunal Service.

So, I would suggest you:
a) Challenge the decision (per calcotti),
https://www.citizensadvice.org.uk/benefits/benefits-introduction/problems-with-benefits-and-tax-credits/challenging-a-benefit-decision/challenging-a-dwp-benefit-decision-on-or-after-28-october-2013/challenging-a-benefit-or-tax-credit-decision-asking-for-a-reconsideration/
b) Contact you MP (per the excellent suggestion by venison)
c) Make a formal complaint (per sportsarb),
https://www.gov.uk/government/organisations/department-for-work-pensions/about/complaints-procedure
d) Request a Subject Access Request to get a confirmation of you informing them, and their initial decision (if you need this for an appeal / further correspondence),
https://www.gov.uk/guidance/request-your-personal-information-from-the-department-for-work-and-pensions
e) A pre action protocol letter to the Legal Team at the DWP.

All can be done at the same time (using the MR wording as basic wording). One will get a result,
Last time I employed this 5 barrelled approach to a clearly incorrect application of DWP regulations, the individual was telephoned in very short order by an apologetic senior DWP DM who was swift to sort out the DWP error. I was never sure, but I suspect the pre action protocol letter may have been the trump card.

seamus84pea

Thank you all for such informative and helpful responses. I have already been in touch with MP and DWP Minister, so maybe that will help. It seems such a farce to have to go to such extremes when a simple (and correct) change could be made. I have noted that it is the same person who wrongly said I did not inform DWP of the pension, that has also made this decision ! ! They seem to be on a bit of a crusade to get me off ESA for some reason - not sure why as I have serious and non improving health issues and I've always kept them informed of everything. It looks like a battle ahead which is just what I don't need so soon after my husbands death. Thank you so much for your responses.

TELLIT01

The minister probably won't get involved as they probably have many of these complaints sent to them. Your MP certainly should, and it really is quite amazing how quickly things get sorted out once they are involved.

SandraScarlett

seamus84pea wrote: »

It looks like a battle ahead which is just what I don't need so soon after my husbands death. Thank you so much for your responses.

Although it is over 4 years since my husband died, I am saddened that things haven't improved in the way newly bereaved spouses are treated.


As you rightly say, this is the last thing you need, at this awful time, and a little compassion would go a long way. Because my DH died on the 23rd December, and most offices were shut, or operating a skeleton staff for 2 weeks, I guessed I'd have to wait a while for my new pension to be sorted out, and didn't phone for a few weeks.


I was then told, that because of the holiday closure, my husband had died at "a very inconvenient time"!!! I hope sincerely that your problem gets sorted out quickly, and wish you strength for the difficult days ahead.

TELLIT01

Almost a case of defending the indefensible, but DWP training is notoriously poor so many front line staff staff mant not be aware of the rules around inherited pension. In my time at DWP training packages for the same role had been cut from 13 weeks (which was probably excessive), to 7 when I started, and newbies around the time I left getting 3 weeks. Not acceptable as it's the claimants who suffer, and utterly ridiculous that it hasn't been sorted out after passing through many pairs of hands.

xylophone

my husband had died at "a very inconvenient time"!!!

That was quite unacceptable. And I expect that you were too sad and exhausted to make the formal complaint that such unprofessional (let alone unfeeling) rudeness deserved.

SandraScarlett

xylophone wrote: »

That was quite unacceptable. And I expect that you were too sad and exhausted to make the formal complaint that such unprofessional (let alone unfeeling) rudeness deserved.

I was so shocked, that I found myself saying "oh, I do apologise. I'll go to a s!ance, shall I, get in touch with him and suggest that if he's reincarnated, that the next time he dies, he makes sure it isn't during the Christmas period".


There was no response, so I said "I didn't hear what you said". And a voice replied "I never said anything". So I said "Oh, silly me, I thought you were apologising". Then I put the phone down and burst into tears.


I also had a letter, from an insurance company, addressed "To the late Mr John Scarlett" (!!!!), and the highly expensive entry in the Book of Remembrance, at the local Crematorium, was originally prepared for the wrong date. And I could go on and on.


Sadly, so many of my friends who have lost their spouses, have had similar experiences. One was asked, repeatedly, to get her (deceased) husband's signature on a form, else they couldn't terminate a contract, even though she sent a copy of his death certificate.