ESA missed out Enhanced Disability Premium - can I reclaim backdate?

[panther12]

I was previously receiving Incapacity Benefit for several years and with the changeover to ESA I was placed in the Support Group of ESA on 10/05/2013.

 

Since placed in the Support Group my ESA has been calculated as follows (at today's rate):

 

Living expenses: £72.40

Support group: £35.75

Top-up payment: £3.90

Total contribution based ESA : £112.05

 

The top-up payment is because I was previously receiving I/B so a transitional payment which reduces each year.

 

I did a recent benefit check and discovered that my ESA has been incorrectly calculated from when I was placed in the Support Group on 10/05/2013. As being in the Support Group my ESA should have included in its calculation the Enhanced Disability Premium of £15.55.

 

When deducting the Top-up payment of £3.90 from the £15.55 EDP, this means that I should have been entitled to BOTH income-related & Contribution-based ESA and a total ESA of £123.70. The Enhanced Disability Premium has consistently been omitted from the calculations and therefore I've not been receiving this which should have been included as Income-related ESA.

 

A couple weeks ago I rang the DWP to query this and they sent me a ESA3 form to complete. I've just received their reply and the letter says they have looked at the claim again following a recent change:

 

From 10/05/2013 your ESA will be £112.05 p/w

From 10/10/2014 your ESA will be £123.70 p/w

 

It says the attached sheet shows how we have worked out your money but the attached sheet they enclosed only shows the calculations from 10/05/2013 to 28/11/2013 showing the total of £112.05 that I was previously receiving.

 

Although the figure of £123.70 is now correct, nowhere in the letter does it mention anything about the Enhanced Disability Premium for being in the Support Group or any mention of Income-related ESA and they have only backdated arrears from 10/10/14 to 06/11/2014 of £46.60.

 

Should I be entitled to backdate from the date I was put in support group which was 10/05/2013 and the date they have consistently missed off the EDP in their calculations? I did put this date on the ESA3 form but looks like they only backdated from the date I asked them to look at it.

[estellyn]

When you were transfered over from incapacity benefit, you were automatically put onto contribution based ESA, and the EDP doesn't apply to contribution based allowance. By putting in an ESA3 form you then claimed income based ESA and once awarded were then eligible for the EDP.

 

You would only be eligible from your original transfer if you were in some way misadvised - for instance if you claimed income support top up and were not advised to claim income based ESA on transfer, or if you enquired and were given wrong advice. You could try to make a case that you should have been informed of the differences between income based and contribution based and who may be eligible, to give you an idea that you should apply for the income based benefit.

 

If you want to challenge then request a mandatory reconsideration of the decision on the basis that it should have been awarded from transfer due to being misadvised at that time. It is very likely to have to go to appeal and even then your chances would be slim unless you have some evidence of misadvice or a fantastic submission.

[id6052]

I suspect that if the decision was made in May 2013, the OP would be out of time to appeal

[estellyn]

I suspect that if the decision was made in May 2013, the OP would be out of time to appeal

 

But they can appeal the newest decision not awarding the backdated IB ESA

[Lapsed Workaholic]

Seems DWP can reclaim overpayments going back years even if it was their mistake. Doesn't it work both ways then?

[antone]

Seems DWP can reclaim overpayments going back years even if it was their mistake. Doesn't it work both ways then?

 

Yes, you can make a case for backdated benefits if the DWP made a mistake when they failed to make an award, or if they erroneously advised that you were not entitled.

 

However, you can't normally claim backdated benefits on the basis that you didn't claim as soon as you became entitled, and I suspect that's how the DWP is seeing this case. Of course, as Estellyn said, OP can submit a Mandatory Recon request and indeed take the matter to appeal, but if there was no IR claim in place until a few weeks ago, he or she would need to show that the failure to claim ESA(IR) was based on bad advice from the department, or some other form of error on the part of the DWP.

[panther12]

Thanks guys, I note what you're saying that it was up to me to make a claim for IR esa. The system is confusing enough for the average joe bloggs and no doubt there are countless others missing out on what they're entitled to. I did read somewhere you can get backdated for a max of 3 months if you would have been entitled at that time so seems unfair to only backdate me a couple of weeks.

 

I've had a look around and read on a disability forum and someone said that new esa claimants are assessed for both types of esa at the beginning of the claim but those reassessed from legacy benefits to esa (like me) do not appear to be automatically assessed for IR esa unless they were receiving a legacy means tested benefit such as income support.

 

However someone else says, the esa rules do not separate a claim between contribution based and income based esa. The law is written in such a way that the Dwp are under a duty to assess you for both when the esa is awarded so if you were due it should be backdated. Those moving from I/B to esa there is no distinction made between reassessment cases and new ESA claims and however you come to the ESA system, including reassessment from legacy benefits that were not means-tested, consideration should be given to awarding both ESA(Cont) and ESA(IR). If no thought was given to awarding ESA(IR) that was an error which you should ask DWP to correct.

 

Do you think it's worth a shot to ask them look again at backdating?

[estellyn]

Thanks guys, I note what you're saying that it was up to me to make a claim for IR esa. The system is confusing enough for the average joe bloggs and no doubt there are countless others missing out on what they're entitled to. I did read somewhere you can get backdated for a max of 3 months if you would have been entitled at that time so seems unfair to only backdate me a couple of weeks.

 

I've had a look around and read on a disability forum and someone said that new esa claimants are assessed for both types of esa at the beginning of the claim but those reassessed from legacy benefits to esa (like me) do not appear to be automatically assessed for IR esa unless they were receiving a legacy means tested benefit such as income support.

 

However someone else says, the esa rules do not separate a claim between contribution based and income based esa. The law is written in such a way that the Dwp are under a duty to assess you for both when the esa is awarded so if you were due it should be backdated. Those moving from I/B to esa there is no distinction made between reassessment cases and new ESA claims and however you come to the ESA system, including reassessment from legacy benefits that were not means-tested, consideration should be given to awarding both ESA(Cont) and ESA(IR). If no thought was given to awarding ESA(IR) that was an error which you should ask DWP to correct.

 

Do you think it's worth a shot to ask them look again at backdating?

 

By all means give it a shot, you've nothing to lose but your own time. You sound pretty eloquent - if you can dig out the regs on transfers and they confirm what you've been told, then you should be able to make a good argument.

[panther12]

Cheers estellyn, I've roughly worked out that I've missed out on around a tenner a week in IR esa for a year & half so reckon it might be worth a stamp. Would definitely be a happy xmas Will let you know what happens

[panther12]

I don't like speaking to these people on the phone and was going send a letter but I bit the bullet and gave them a ring. Spoke to someone who tried to flannel me but I stood my ground and he said he'll get someone to call me back. They just rang back and spoke to someone who seems more clued up. Explained the situation and he did agree that any IR esa should have been considered at the time I was assessed for support group. Although I've already completed the 50 page ESA3 form, he said it's probably at a different depatment and has no record of it so he's going send another one to complete and to include a covering letter and send it back to a different department and he'll see what he can do as he thinks I should get the backdate. Will let you know.

[speedfreek]

You're not the actual person being repped here are you?

 

http://www.rightsnet.org.uk/forums/viewthread/7199/

 

You read that and the thread Mr Dutton has linked to in his post in that thread.

[panther12]

You're not the actual person being repped here are you?

 

http://www.rightsnet.org.uk/forums/viewthread/7199/

 

You read that and the thread Mr Dutton has linked to in his post in that thread.

 

No but thanks for the link, it may come in handy should I need to progress this further. I read some good info on the yourable group which said the DWP should consider you for both cont + IR esa at the time you are assessed for esa so if I can back that up with case law I can't see how they can deny me and say it's my fault for not applying for IR at the time. This could also get a bit more messy as I'm also been pursude for claiming free NHS dental when I thought I was receiving IR esa and which I should have been entitled to. They've issued me a letter before action and say they'll commence action in county court if I don't pay £153.00 in 7 days.

[speedfreek]

I'm also been pursude for claiming free NHS dental when I thought I was receiving IR esa and which I should have been entitled to. They've issued me a letter before action and say they'll commence action in county court if I don't pay £153.00 in 7 days.

 

You need to pay that and then claim it back once you've won.

 

Or at least engage with them to try and arrange a payment plan before that happens.

 

Whilst you should win this... until the 'this' is decided one way or the other you're liable for that cost as you are currently not awarded a benefit that gives you free dental treatment.

 

Moral standing aside you do not want the £200 court fees plus the added stress of debt collectors turning up at your door and their additional fees do you?

 

Might be worth while you reporting you're own post above this (little triangle icon) to the boards mods and asking if they can get one of the debt experts to pop in for their take on it and what you need to do?

[Nystagmite]

They can only consider you for IR ESA if you give them the relevant details. Because IB was contributions based, you wouldn't have needed to give them these details.

[panther12]

You need to pay that and then claim it back once you've won.

 

Or at least engage with them to try and arrange a payment plan before that happens.

 

Whilst you should win this... until the 'this' is decided one way or the other you're liable for that cost as you are currently not awarded a benefit that gives you free dental treatment.

 

Moral standing aside you do not want the £200 court fees plus the added stress of debt collectors turning up at your door and their additional fees do you?

 

Might be worth while you reporting you're own post above this (little triangle icon) to the boards mods and asking if they can get one of the debt experts to pop in for their take on it and what you need to do?

Thanks speedfreek, I did outline the situation to them in an email and said the DWP are currently looking into the missing IR esa that I should have been entitled to at the time, they emailed back allowing me 14 days while they make enquiries. I've actually had 3 penalty charges for dental treatment on 25/11/2013, 03/03/2014 and 03/06/2014.

 

I didn't get the 1st penalty until after I had already been for a 2nd dental treatment. When I did receive the 1st penalty I applied & received a hc2 certificate for full help with health costs but the date of the cert is just after the date I had my 2nd treatment. They cancelled the penalty out of goodwill and as I hadn't received a penalty for the 2nd treatment I assumed they had cancelled both the 1st & 2nd dental treatment penalty. I then received a 2nd penalty for the dental treatment of 03/06/2014. My certificate covered me for this date but the dental receptionist had ticked income support even though I had shown them the HC2 cert. I sent a copy of the HC2 and this penalty was cancelled. On 01/10/2014 I then received another penalty for the 2nd dental treatment of 03/03/2014. I thought they had already cancelled this one along with the 1st penalty. I then received their letter before action for the dental treatment of 03/03/2014. My HC2 cert covers me from the 13/03/2014 and my other argument to this penalty is that it has taken them over 7 months to issue me this penalty. Apparently you can reclaim NHS charges backdated to no more than 3 months if you would have been entitled at that time, so by them not issuing this penalty until October has prejudiced my entitlement to have paid the NHS fee and reclaimed it back within 3 months. From the telephone conversation I had with DWP I'm hopeful the IR esa will get backdated to May 2013 and hopefully this will get sorted.

[panther12]

They can only consider you for IR ESA if you give them the relevant details. Because IB was contributions based, you wouldn't have needed to give them these details.

It appears that only new esa claimants were getting assessed for both IR & cont whereas those from the old system were only assessed for IR esa if they were previously receiving means tested such as income support. From what I've read there should be no distinction to how you come on the esa system, whether new claimant or reassessed from I/B, as however you come to the esa system consideration should be given to both IR & cont at the time you are assessed for esa. If no consideration was given to awarding IR when assessed for esa then that was a mistake.

[Mouse26]

Hi

 

Sorry to bump this thread but i'm in a similar position regarding backdating of Enhanced Disability Premium Top-up and i was wondering if Panther12 has been successful in their appeal yet.

 

About me...

 

I filled in the ESA3 form and sent it back a few weeks ago and yesterday i received a letter to confirm i was entitled to Enhanced Disability Premium Top-up of £15.55 per week as i'm in ESA CB Support Group.

 

The letter states my EDP claim started on 27th November 2014 and they owe me £25.70 in arrears.

 

Thing is i've been in ESA CB Support Group since i transferred from IB in July 2012 and my circumstances haven't changed in that time so i would have qualified for it then but never knew about EDP until about 1 month ago.

 

My question is do i have a case in getting EDP backdated to July 2012 and if yes how do i go about claiming it...

 

Would appreciate any help.

 

Thanks