DWP errors and cut off date for backdated premiums

butterflies56 · 19 December 2017 at 4:10PM

With a great deal of help from Epitome, I filled in an ESA3 form and backdated it to Oct 2012
As I had been migrated from IB to ESA(cont) and Support Group at that time but did not receive and ESA3 form in 2012.

I met all the criteria for Enhanced Disability Premium but never received these payments.
Even though the payments showed up on my Housing and council Tax Benefits letters.

Anyway, fast forward to this week and I have received a letter from the DWP and payment for backdated EDP to Oct 2014. So 3 out of 5years payments received.

The DWP quote..."By law we are unable to pay you for any period before October 2014 (Section 27 of the Social Security Act 1998).

I did some research on this and have found that the DWP are using "Error in Law' to get around not paying people(these are the 75.000 claimants who have been underpaid) the EDP(in my case) and probably SDP in other cases.

I have never had to appeal anything before with the DWP but I am going to appeal this decision.

My question is....How do I appeal?
Do I just write to them and say I am appealing the decision or do I need to fill in a particular form?!
Thanks in advance for anyone's help!

butterflies56 · 19 December 2017 at 4:33PM

The last couple of paragraphs are very interesting...

Employment and Support Allowance (ESA) was introduced in 2008. In 2011 the Department began reassessing people claiming pre-existing incapacity benefits to see whether they were eligible for ESA. The previous benefits included Incapacity Benefit, Severe Disablement Allowance and Income Support.
In 2013, the Department was made aware of individual cases which were transferred in error to contributory ESA, rather than to income-related ESA, and therefore which may have had an unidentified entitlement to additional premia, such as the enhanced disability premium. These premia are only payable to those on income-related benefits. From 2014 additional guidance was put in place to ensure all claims transitioning from that point forward were more fully assessed for both contributory and income-related benefits, and therefore the relevant premia paid.
At the time officials did not identify the need to explore the potential impact of the earlier error. This was reconsidered in the light of analysis following the preliminary Fraud and Error statistics published in May 2016. In February 2017, ministers were first informed of the results of this analysis and a sampling exercise began in preparation for a full repayment process. The Department has already started contacting individuals to establish if there has been an underpayment of premia. A small number of claims have already been corrected and the appropriate arrears have been paid.
As a result of the sampling exercise, the Department estimates that around 75,000 claimants may have been underpaid. This amounts to about 5% of those people who transferred over from incapacity benefits, or around 3% of the current ESA caseload.
We realise how important it is to get this matter fixed. The Department has established a special team to begin contacting all individuals whom we believe may be affected. There is therefore no need for individuals to independently contact the department on this matter. Once an individual is contacted and subject to establishing the relevant information, we expect to make a decision on each case and repay the appropriate arrears within 12 weeks. The Department expects to complete the review and correct cases during the course of 2018/19.
This relates to a specific group that transferred to contributory ESA between 2011 and 2014, for which applicable underpayments will now be corrected and paid. Arrears are payable to those who qualify from 21 October 2014 following an Upper Tier Tribunal ruling in the case of LH v SSWP on that date. Under Section 27 of the Social Security Act 1998, when a tribunal establishes the meaning of a legislative provision, payments of arrears which pre-date the tribunal ruling are barred.
The Department is reviewing its processes to ensure any lessons are learnt and that this error is avoided in the future.

epitome · 19 December 2017 at 10:16PM

I will try to look for the relevant regulation, to refer to, can't promise anything.

This Social Sec Act 1998 law S27...sounds bizarre. And I would want to know what date the LH v SSWP arrears went back to because surely that could be relevant as well?
http://www.legislation.gov.uk/ukpga/1998/14/pdfs/ukpga_19980014_300617_en.pdf

I would certainly be writing to my MP enclosing a copy of the decision. And asking why the government knows they have acted incorrectly but are refusing to fully correct the error.

And I would be looking for a free solicitor consultation and looking on social media...for a class action against the DWP or creating your own social media group inviting people to join you in a class action.

I guess people -and there are some- who got it back paid to 2012 are lucky because the DWP had not set up the task force so decision makers were just awarding what they thought was right. Now the task force is being set up they have sought ways to minimise the departments losses.

The decision is here
http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4349

I have read this one before, it allows ESA IR to be backdated to a date of a supersession. The supersession was that she was placed in the support group 1 year after migration and being in the WRAG. I can't read it now as I don't have office on this computer. but as I remember it ...it does not state how long a claimant has got (after the supersession takes place) to ask for a backdating to the date of the supersession. And hey I'm not legally qualified, and I don't pretend to know more than the DWP's legal section.....but I can't really see the relevance of this tribunal decision to the question of ESA IB Mig arrears on the failure of the DWP to carry out it's duty on IB reassessment.... As far as I am aware this UT tribunal does not even mention the relevant law/regulation that requires DWP to assess for Income Related on migration (this is the law I was referring to on the first line of this post) unless they are saying that IB migration is in itself a supersession (I don't know if that is true or not)

My thinking is right now that there are 2 ways to look at this....an error has occurred in the DWP that IR was not assessed at IB migration.

* The DWP is required to assess for IR by regulations (the one I will find for you)
* The IB Migration is maybe a supersession in itself

The DWP seem to be saying they will not allow arrears on the second point but totally ignore the first point.

I would ask for a verbal explanation call and request written statement of reasons as to why the DWP thinks this UT decision relates to IB Migration ESA IR backdating requests.

butterflies56 · 19 December 2017 at 11:46PM

Thank you Epitome!
I totally agree with everything you have said.

There has been an UT Appeal about this very issue which took place a couple of weeks back but it looks like the result won't be published until early January.

I would love to be able to get a Class Action going but unfortunately I am too ill and bedridden for long periods of time. I can only manage a very short time on laptop per day but definitely not enough to be on Social Media. I wish my brain would work like it used to!

Thank you so much for all your help though because it was you who gave me the confidence to make the call to ESA and as a result I did get 3years back dated which has made a huge difference to my finances. I am extremely grateful to you Epitome for making such a difference to mine and other peoples lives.

epitome · 20 December 2017 at 12:24AM

Nice to hear, thank you, it beats being accused of fraud by people who don't have a clue.

epitome · 20 December 2017 at 12:38AM

Actually thought of something else...

The act of completing the ESA3 is a request for a supersession of ESA.

So what DWP are saying is that they will only grant the supersession back to Oct 2014. This is how the OCT 2014 UT decision becomes relevant.

But it is because of DWP error that you were not invited to do an ESA3 in 2012.

So I would be asking if you will cannot award ESA back before Oct 2014 are you going to compensate me for my losses that have occurred from your error? for the period 2012 - 2014

The DWP has a process for claiming compensation..special payments I think they call it. Compensation should be equal to if not more than what they would have paid you.

If they are correct it does not stop them from paying compensation, in fact it should make it more likely that compensation is owed.

butterflies56 · 20 December 2017 at 10:59AM

epitome wrote: »

Actually thought of something else...

The act of completing the ESA3 is a request for a supersession of ESA.

So what DWP are saying is that they will only grant the supersession back to Oct 2014. This is how the OCT 2014 UT decision becomes relevant.

But it is because of DWP error that you were not invited to do an ESA3 in 2012.

So I would be asking if you will cannot award ESA back before Oct 2014 are you going to compensate me for my losses that have occurred from your error? for the period 2012 - 2014

The DWP has a process for claiming compensation..special payments I think they call it. Compensation should be equal to if not more than what they would have paid you.

If they are correct it does not stop them from paying compensation, in fact it should make it more likely that compensation is owed.

Thank you very much for this information and very much appreciated.

Will look into this and put together a letter to them.

Thanks again you're an :A

epitome · 22 December 2017 at 12:42AM

I did not answer your original question, "how to appeal"

You have 1 month to ask for a Mand Recon, but there should be no problem if it is late. by asking for a WSOR entitles you to a 2 week extension on the time you have to submit an MR (the guidance of the 2 week extension is not very clearly worded.) I would not worry about the MR deadline, there is other guidance that says late submissions should be generally accepted.

First write a letter ask for mandatory reconsideration, stating reasons why decision is wrong or just asking for a second decision with no reasons.

send or scan letter via jobcentre or phone ESA and request they take your reasons by phone to be typed by operative and sent in handover.
Best by scan or phone.

State it has now become "a supersession request" through the DWP error in the first place, had they done the IB migration properly it would never have had to be a supersession...because the ESA would have been awarded from the outset as Income related, as they would have assessed you for income related as part of the process.

A supersession is a request for a change
If it had been assessed to begin with before ESA was first awarded there would have been no need for a change, and hence no supersession.

They are penalising you for their error. Request that the ESA3 be treated as though it had been completed in 2012 not 2017

epitome · 22 December 2017 at 10:22AM

As I said earlier my computer does not have word so I have not had a chance to re-read that UT tribunal, I am working from memory here.

Before sending a mandatory recon letter, I would ask DWP to explain in a Written Statement Of Reasons (WSOR) precisely what meaning of which legislative provision was established at the UT tribunal and why that becomes relevant now to bar them from paying arrears in your circumstance before the UT date. Unless you have more in your letter that will help explain this?

They could say they learned any of these, most likely the last one

A) "Arrears of ESA are payable back to a date of a pre-existing supersession.".... I would argue that in your case there is no date of pre-existing supersession. Your supersession decision date is 15/12/2017 this decision allows your arrears to be payable back to 2012.

Or

"Completing an ESA3 for ESA(IR) is not 'making a new claim' and hence not time limited to only 3 months of arrears but instead it can be backdated to a date of a pre-existing supersession on an existing claim if that supersession gives reason for it to be advantageous to claim ESAIR."..... But again, you don't have a pre-existing supersession, so I can't see how it is relevant.

Or

C) "Completing an ESA3 for ESA(IR) is not 'making a new claim' and hence not time limited to 3 months of arrears but it can be backdated more than this.".... Which is a more general way of looking at the UT decision. Which makes it more relevant to your case.
I would argue....
That in the specific UT case, arrears were payable to the date of a pre-existing supersession (that of support group being awarded). You do not have a pre-existing supersession date. So ask them (in your request for a WSOR) on what grounds are they allowing you to backdate to October 2014? Their argument should be "we are allowing backdating due to our error of not assessing you for ESA IR at migration in 2012" which, to me, is a different reason for allowing backdating. If it is a different reason that allows backdating, then arrears should not be barred beyond October 2014.

and

That the claimant in the UT was doing the the ESA3 of her own volition, not due to an error in process on the part of the DWP. But you are doing the ESA3 to correct an error in process that dates back to before your ESA start date. So the two scenarios are not identical and should not be compared.

How did you find out about the new UT case coming in January? Any links?

You should also note, that the decision maker has already written what they would call a WSOR, you already have it in the form of the letter you got. So although I am suggesting you ask them to clarify these certain points....I don't think they will, they will just send you the same decision letter again. I suggest your best hope of getting the answers to the my questions is to phone them and ask for a call back for a verbal Explanation of the decision...ask the DM these questions and when they have explained themselves to you say toi them "You did not say any of this in your decision letter can you send me another letter clarifying these points."

Alice_Holt · 22 December 2017 at 10:24AM

Here is a template for the MR:
https://www.leicester.gov.uk/media/178163/mandatory-reconsideration-request.pdf

Here is some info on the appeals process:
https://www.citizensadvice.org.uk/benefits/sick-or-disabled-people-and-carers/employment-and-support-allowance/while-youre-getting-esa/challenging-an-esa-decision/
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/appealing-against-a-benefit-decision/appealing-against-a-dwp-benefit-decision/

Some useful info from epitome in his posts - thanks.

Good luck

Edit: I would put the wording epitome has suggested above in the MR request. It's a difference of opinion on tactics only. But the MR has time limits - I would get it in asap

butterflies56 · 2 January 2018 at 7:46PM

Hi Alice

Thank you very much for your information
I very much appreciate your time to post the links

:A

DWP errors and cut off date for backdated premiums

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