Pension, Incapacity Benefit/ESA problems

Dear forum

I received my ill health pension in June 2012, I immediately informed the DWP as you must, and told them of my monthly amount, and on the form that they sent out it said " we will check your pension details " I mentioned that it increased every year in April and that I didnt know how much by, I am not well enough to figure out index linked pension schemes. And indeed I was ill in January -May 2013 because I had a major abdominal operation

My incapacity benefit was reduced and everything was fine. No problems there. Now I had no idea that anything was wrong.

I was migrated to ESA, and I received my payments happily for the next four four and half years.

I went for a new work capability assessment and of course mentioned my pension knowing that I had informed the DWP and that they would check it every year etc.


28/11/2017 I receive a notice of " You didnt inform us you were getting a Pension" with a threat of Civil Penalty"

I send back my photocopy of the form I sent in 2012 and say Yes I did. They waive the civil penalty and then say I didnt inform the ESA office on the date of migration and ask me to pay back £3491.07 And say that I did not inform the ESA office that I had a pension.

I of course send back to mandatory consideration that I had informed them and that they had not migrated my form and that it was their responsibility to have checked the pension because it said so on the form that I had sent back to ESA. and re attach a photocopy of the Incapacity benefit form showing all these details and pointing out that they should check pension details

In between they send a pension authority form to check what the increase is this year. I of course don't know and send back an authority for them to contact the pension provider.

They came back and admitted their mistake in not migrating the form and say that because they omitted to migrate the form to ESA, and had basically lost it that I was not culpable for the period between the migration and the pension increase date.

They are saying that I should have informed the ESA office of the index linked increase.

and that I should repay £3398.99

because I am not responsible for the period of 22/2/13 to 18/4/13

How was I supposed to know that they had lost the form.~? They said that they would check pension details and therefore I suppose they would have sent out an authority form in 2013 if they hadn't lost the form in the first place?

I have issue with this because I was naturally under the impression that if a document from the DWP says, we will check your pension details that absolves me of that responsibility?

They lost the form. It has taken me five months for them to get to admit their mistake on that front. Not to mention the distress Ive been under. Ive barely slept

I am sure that if they had migrated the document properly at that time that I would have been sent an authority form, just I was this year, and that I would have filled it in happily and sent it back. I was unaware that they had lost the form. Their mistake has cost me dearly and resulted in an overpayment.

Is it totally their fault? Surely the form that says " We will check your pension details" is precedent to the ESA rules? Had I been aware that they had lost the form of course I would have told them But I didn't know this until 28/11/17 when I got the civil penalty notice.

So who is responsible here? And what steps should I take. I intend to take them back to further mandatory reconsideration because it all stems from them losing that form. This is their mistake surely?

Help please

Many thanks in advance.
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Comments

  • pmlindyloo
    pmlindyloo Posts: 13,049
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    Dear forum

    I received my ill health pension in June 2012, I immediately informed the DWP as you must, and told them of my monthly amount, and on the form that they sent out it said " we will check your pension details " I mentioned that it increased every year in April and that I didnt know how much by, I am not well enough to figure out index linked pension schemes. And indeed I was ill in January -May 2013 because I had a major abdominal operation

    My incapacity benefit was reduced and everything was fine. No problems there. Now I had no idea that anything was wrong.

    I was migrated to ESA, and I received my payments happily for the next four four and half years.

    I went for a new work capability assessment and of course mentioned my pension knowing that I had informed the DWP and that they would check it every year etc.


    28/11/2017 I receive a notice of " You didnt inform us you were getting a Pension" with a threat of Civil Penalty"

    I send back my photocopy of the form I sent in 2012 and say Yes I did. They waive the civil penalty and then say I didnt inform the ESA office on the date of migration and ask me to pay back £3491.07 And say that I did not inform the ESA office that I had a pension.

    I of course send back to mandatory consideration that I had informed them and that they had not migrated my form and that it was their responsibility to have checked the pension because it said so on the form that I had sent back to ESA. and re attach a photocopy of the Incapacity benefit form showing all these details and pointing out that they should check pension details

    In between they send a pension authority form to check what the increase is this year. I of course don't know and send back an authority for them to contact the pension provider.

    They came back and admitted their mistake in not migrating the form and say that because they omitted to migrate the form to ESA, and had basically lost it that I was not culpable for the period between the migration and the pension increase date.

    They are saying that I should have informed the ESA office of the index linked increase.

    and that I should repay £3398.99

    because I am not responsible for the period of 22/2/13 to 18/4/13

    How was I supposed to know that they had lost the form.~? They said that they would check pension details and therefore I suppose they would have sent out an authority form in 2013 if they hadn't lost the form in the first place?

    I have issue with this because I was naturally under the impression that if a document from the DWP says, we will check your pension details that absolves me of that responsibility?

    They lost the form. It has taken me five months for them to get to admit their mistake on that front. Not to mention the distress Ive been under. Ive barely slept

    I am sure that if they had migrated the document properly at that time that I would have been sent an authority form, just I was this year, and that I would have filled it in happily and sent it back. I was unaware that they had lost the form. Their mistake has cost me dearly and resulted in an overpayment.

    Is it totally their fault? Surely the form that says " We will check your pension details" is precedent to the ESA rules? Had I been aware that they had lost the form of course I would have told them But I didn't know this until 28/11/17 when I got the civil penalty notice.

    So who is responsible here? And what steps should I take. I intend to take them back to further mandatory reconsideration because it all stems from them losing that form. This is their mistake surely?

    Help please

    Many thanks in advance.

    Basically it is your responsibility to inform the DWP of any change of circumstances. This includes informing them of any change of income including pensions.

    I do not know if pension authority forms are sent out each year - perhaps someone else will comment on that. It could be that they sent one to you knowing now that your pension would increase. if a form is sent out each year then I think you would have a good case to appeal this overpayment because they 'lost the form'.

    If it isn't sent out automatically then it might prove more difficult.

    You could argue that they wrote that they 'check' pension details' which lead you to believe that you did not have to report the change as you thought they would do so through their checking.
    (they don't do this, by the way :) too many claimants!)

    You could also argue that if they hadn't lost the form this would have been 'picked up' before and your overpayment wouldn't have gone on for so long.

    I do not know the nature of your disability but you may be able to argue that your disability means that you are unable to deal with such matters due to.................. (This may not be relevant.)

    It may also be helpful to contact CAB or similar welfare specialist to appeal this on your behalf.
  • xylophone
    xylophone Posts: 44,139
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    knowing that I had informed the DWP and that they would check it every year etc.


    They said that your pension details would be checked at the point that you completed the form in 2012 - they did not say that they would check the details at any point thereafter?

    You told them that your pension was index linked but it is not their responsibility to check the index or rules applied by your particular scheme?

    It was up to you to report the change (increase) in your pension?

    https://www.gov.uk/employment-support-allowance/change-of-circumstances

    However, in view of the misunderstanding/error, they should offer you a repayment plan, perhaps over a few years?
  • They lost the form within 12 months , whilst the migration of the IB to ESA. In fact they admitted that they had not migrated the information to ESA which means that when they originally calculated the ESA they were at fault because they didn't have the pension information. They have said as much finally.
    BUT: If they had had the pension information on the ESA migration they would have included it in the letter of the ESA migration saying we need you to tell us when your pension changes. How was I supposed to know that they had lost the form and the information within 12 months during the migration period,. Plus I had an operation and was recovering during that time > I am not a mind reader or blessed with esp .

    No such information was in the ESA letter. They have waived the payment from the date of the ESA migration to three days before the pension increase. I wouldn't have known to tell them under the new rules because I thought naturally that they already had the information. I feel really misled

    The DWP are ruthless and will strike at you like a snake and refuse to back down Its taken me five months to get them to admit their mistake.

    See what Frank Field says about them in this article from the Guardian: from the 20/03/18 ( you can find it by googling guardian article National Audit office , DWP

    "Frank Field, chair of the work and pensions committee, said: “This is a damning report. The department is quick to act in cases of overpayment, quick to sanction claimants for any breach of its rules – but when the shoe is on the other foot, has shown it will take years to recognise and get to grips with its own mistakes.”

    I don't really trust them at the end of the day. And I'm not going to stop until I get to tribunal and it is decided who is at fault here. Their original mistake meant that I was unaware that they had lost the details. If at any point I had found out that they had lost it I would have told them immediately that they were at fault. I only found out in November 2017.
  • Alice_Holt
    Alice_Holt Posts: 5,918
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    I'm afraid I can't see what sensible argument can be put to a tribunal in your position.

    The regulations are very clear:

    " ......the Secretary of State can recover:

    - the sum which the Secretary of State would have received if there had been no misrepresentation or failure to disclose.
    2.5 The terms misrepresentation and failure to disclose apply to both innocent
    errors
    ......."

    https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/683470/benefit-overpayment-recovery-guide.pdf

    The DWP are not recovering the whole of the overpayment you have received. They have accepted official error for part of it.

    This is from gov.uk:

    "When repayments have to be made

    You’ll have to pay money back if the benefit overpayment was your fault, for example:
    - the information you gave was wrong
    - you didn’t report a change in your circumstances
    - you gave the wrong information when you reported a change of circumstances
    - there was an administrative mistake but you should have noticed the overpayment, for example you received 2 payments instead of one

    You should also contact the office if you think the amount you’re being paid is wrong and it isn’t your fault."

    I'd be very wary of taking this to tribunal without a good case grounded in benefit legislation. The tribunal could view you as vexatious, and you may leave the tribunal in a worse position.
    Alice Holt Forest situated some 4 miles south of Farnham forms the most northerly gateway to the South Downs National Park.
  • Tommo1980
    Tommo1980 Posts: 406 Forumite
    I think Alice has hit it dead on!

    Your ESA was miscalculated on migration due to official error. The DWP have accepted this and are not pursuing the overpayment for the relevant period.

    The rest is down to your erroneous assumption. It is benefits 101 - you must inform DWP of any changes.
  • bigbill
    bigbill Posts: 928
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    When you were on IB you say your IB was reduced due to your pension, when you moved to ESA was it still reduced in other words did it stay the same or did it go up as they missed the pension?
  • Alice_Holt
    Alice_Holt Posts: 5,918
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    bigbill wrote: »
    When you were on IB you say your IB was reduced due to your pension, when you moved to ESA was it still reduced in other words did it stay the same or did it go up as they missed the pension?

    Yes, I was wondering that.

    If the OP goes to tribunal in a fit of DWP resentment, I wonder if the tribunal might consider he "should have noticed the overpayment".

    They may well consider his familiarity with benefits, and capability.
    Hence my " leave the tribunal in a worse position" comment above.
    Alice Holt Forest situated some 4 miles south of Farnham forms the most northerly gateway to the South Downs National Park.
  • rupertthebear
    rupertthebear Posts: 7 Forumite
    edited 21 April 2018 at 11:37PM
    When you were on IB you say your IB was reduced due to your pension, when you moved to ESA was it still reduced in other words did it stay the same or did it go up as they missed the pension?
    Originally posted by bigbill
    !!!8221;Yes, I was wondering that.

    If the OP goes to tribunal in a fit of DWP resentment, I wonder if the tribunal might consider he "should have noticed the overpayment".

    They may well consider his familiarity with benefits, and capability.
    Hence my " leave the tribunal in a worse position" comment above.

    And I had told them on the IB form that it would increase every year on the 21st of April but I didnt know by how much. Im not blessed with foresight as far as an index linked pension is concerned. I barely watch tv or read newspapers or listen to the radio. Ive come here for clarification. I reported the changes before they happened. I told them in no uncertain terms that it would go up every year and the form has that and the date it would happen. They lost that so how was I supposed to tell them again if I believed they had the form. I didn't realise that they were overpaying me. Benefits go up every year too.

    They did reduce the Incapacity Benefit but when I was migrated the payment from the ESA was almost exactly the same as when I was on IB because I had been on the highest rate of Incapacity benefit. Which was then adjusted down to basically what I got in the first ESA payment

    Thats why I didn't notice. I would have noticed a large increment. but it was literally less than 5 pounds more and I didn't notice that. Is five pounds really that much more? And as the gov. uk website says
    on this page https :// www. gov .uk/ employment-support-allowance/moving-incapacity-benefits-esa



    If the amount of benefit you currently get is lower than the amount of ESA your money will increase as soon as you move to ESA.

    I only found that website through here this morning. I hadnt seen it before. At all. I hadnt even known that it existed. My memory for 2012-2015 is shot to pieces anyway. You could ask my health professionals.

    Thing is I have no familiarity with benefits. I've had to have a steep learning curve the last few months ever since they accused me of not telling them about their pension. Its alien to me and I don't know all the rules I go by the correspondence I get and by what I can glean from the internet. As for capability I hardly think brain fog chronic fatigue and depression mean that I can beat lawyers up at their own game. Its taken five months for them to fully check my documents.
  • You!!!8217;ll have to pay money back if the benefit overpayment was your fault, for example:
    - the information you gave was wrong
    - you didn!!!8217;t report a change in your circumstances
    - you gave the wrong information when you reported a change of circumstances
    - there was an administrative mistake but you should have noticed the overpayment, for example you received 2 payments instead of one

    You should also contact the office if you think the amount you!!!8217;re being paid is wrong and it isn!!!8217;t your fault."

    None of these apply. I was on so much medication I cant even remember those years.
  • Tommo1980
    Tommo1980 Posts: 406 Forumite
    edited 22 April 2018 at 8:50AM
    None of this changes the fact that all you had to do was pick up the phone (or send a letter) once a year, when you received your pension increase. No need for psychic powers.

    It's just one of those things, mistakes and oversights happen on both sides. If you think you have a case then go for it, but it seems the consensus here is that you don't (or that you could end up worse off).
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