DWP errors and cut off date for backdated premiums
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How did you find out about the new UT case coming in January? Any links?
The thread itself is a few years old so shows how long this problem has been going on
https://www.rightsnet.org.uk/forums/viewthread/5928/P120 starts at post 127
https://www.rightsnet.org.uk/forums/viewthread/5928/P150 post 161 mentions UT
Hope this helps
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Hi everyone
After having ESA EDP backdate restricted to 21 October 2014(LH v SSWP).
I asked for a Mandatory Reconsideration and told the DWP I would be sending this by letter which I put together with a lot of valuable help from Epitome.
The Mandatory Reconsideration was done based on my phone call. So the DWP did not wait for my letter even though I asked them to...so none of my questions were answered!
Anyway, I have now completed SSCS1 Form and used my original Mandatory Reconsideration Letter as the basis for the appeal.
I have asked for a paper based appeal as I am 100% housebound so cannot get out of the house.
Anyway, I just wanted to let you know the situation so far and I would not have got this far without the much needed help and support on here.
Will keep you posted of any further developments:)0 -
Did you get them to explain what specific law was clarified by the UT that they are now applying to your case?
And why it is being applied to your case...as yours is (IMHO) not a supersession and if it is a supersession then it is a supersession brought about by DWP error... which is not the same as the UT case.
Did you also ask for DWP special payment of compensation to cover your losses prior to October 2014 for the DWP error?
Although they went ahead and treated your man Recon on the basis of your phonecall that does not stop you from writing what you would have written for the MR to them and the MR department will look at what you send in. You can also ask for a verbal explanation from the MR decision maker to ask those questions above .
You have an MRnotice letter, there should be a detailed explanation can you either photograph it (blank out your address and reference no.) or type it out here?0 -
Did you get them to explain what specific law was clarified by the UT that they are now applying to your case?
And why it is being applied to your case...as yours is (IMHO) not a supersession and if it is a supersession then it is a supersession brought about by DWP error... which is not the same as the UT case.
Did you also ask for DWP special payment of compensation to cover your losses prior to October 2014 for the DWP error?
Although they went ahead and treated your man Recon on the basis of your phonecall that does not stop you from writing what you would have written for the MR to them and the MR department will look at what you send in. You can also ask for a verbal explanation from the MR decision maker to ask those questions above .
You have an MRnotice letter, there should be a detailed explanation can you either photograph it (blank out your address and reference no.) or type it out here?
It's a text version of scanned MR letter...
"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
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 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 (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
On a decision was made to award ESA (IR) from 21/10/14.
On you asked us to look at this decision again and for you to be awarded ESA
(IR) from 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 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 so as to award ESA (IR)
!!!8216; from
The law used to make this decision
The Employment and Support Allowance (Transitional Provisions. Housing
!!!8217; Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010,
regulation 8(1)
The Social Security and Child Support (Decision Making and Appeals)
Regulations 1999, regulation 3(1)()b). 6(2)(b) and 7(6)
Social Security Act 1998. section 27
Case Law: LH v SSWP (ESA) [2014] UKUT 480 (AAC); [2105] AACFI 14."
I have also rang them again for a call back to answer the questions that I sent in my letter received by them 2days after their decision.
Thanks again Epitome for all your help 0 -
I have not forgotten you, I am just busy...sorry0
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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 2014.0 -
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 was a case where ESA had been claimed and was in payment as ESA Contributory. Subsequently the Support Group was allowed and the claimant requested ESA IR back to the start of the claim. The tribunal refused backdating to the start of the claim but allowed it to a date of supersession -the date the SG had been awarded from-. My case is that of an IB/IS migration to ESA, where the DWP were required by law to assess me for ESA IR at the time of migration in 2012. The DWP erroneously did not assess me for ESA IR until 2017/2018.
The two scenarios presented between the lead case and my case are wholly separate are not similar in any way. I am not asking for backdating of ESA to a date of supersession. I am asking for backdating of ESA to the date of inception of ESA as a result of migration. I am asking for this to be done only because due process was not followed by yourselves at that time. In 2012 the DWP was fully aware of their responsibilities to assess all migratory claimants for ESA IR. This is not something the DWP only became aware of after what you refer to as the lead case. Therefore I believe you are in error and backdating should be allowed to date of migration.
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.
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speedfreek1000 wrote: »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.
Hi speedfreek
Thank you very much for the link0 -
Hi Epitome
Thank you very much again for taking time to reply and
Thanks again for your help. it's very much appreciated! :A0 -
Here's a link to the Rightsnet thread post no 281 30 March 2018
giving details of an Application by CPAG for Judicial Review regarding limiting of backdated arrears in IB to ESA migration cases where backdating was limited to 21 October 2014
https://www.rightsnet.org.uk/forums/viewthread/5928/P2700
This discussion has been closed.
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