We have written to Damian Green MP, Secretary of State for Work and Pensions, to raise concerns about what we see as the DWPs failure to follow correct legal procedures on conversion of incapacity benefit claimants to employment and support allowance. The full text of our letter is reproduced below.
“Our members have identified many former Incapacity Benefit/Severe Disablement Allowance claimants who have been migrated to Employment and Support Allowance (ESA), and only been awarded contributory ESA as the Department for Work and Pensions have failed to apply the regulations and their own guidance and undertake a financial assessment to check entitlement to any top up of Income Related ESA.
The DWP guidance states:
45413: The claimant’s duty to disclose information relevant to their existing award of benefit is modified to enable the Secretary of State to require from the claimant information or evidence for the purposes of determining whether that award should be converted to ESA 1. [1 ESA (TP, HB, CTB) (EA) (No2) Regs, Sch 1, para 13 (a); SS (C&P) Regs, reg 32 (1)]
45414: Enables the Secretary of State to establish whether a claimant whose existing award is IB or SDA and who is not entitled to IS, might be entitled to ESA (IR) as well as ESA(Cont) on conversion.
The legal requirement for conversion decisions from incapacity benefit to ESA to consider entitlement to income-related ESA is confirmed in UKUT 342 (AAC)
The migration process started in March 2011 and we are calling on the Department for Work and Pensions to revisit all claimants nationally where they failed to adhere to the legal requirement and their own guidance and assess them any entitlement to an income related top up.
Many of our members have taken up cases in respect of individual claimants and found that they have been underpaid by thousands of pounds (see rightsnet discussion thread for more details). This is only the claimants that have been in a position to obtain advice. There are likely thousands more who have had their benefit incorrectly calculated due to DWP failing to follow the law. NAWRA believes that the DWP is obliged to correct those cases and seeks to ensure that the DWP trawl all cases to pick up any outstanding errors of law.
NAWRA strive to challenge, influence and improve welfare rights policy and legislation, as well as identifying and sharing good practice amongst our members. It is in this vane that we request this piece of work is undertaken to ensure that all claimants receive the correct amount of benefit that is due to them.
We look forward to hearing your response, and the action you will be taking to ensure that any cases where the legislation has not been applied correctly will be picked up and arrears paid.”
We will update members when we receive a response.
NAWRA has sent a formal response to the Work and Pensions Committee Universal credit update inquiry. Thank you to all the members who responded to our request for information – your help has been invaluable, as always.
NAWRA has serious concerns about Universal Credit – in particular as the full service rolls out. We have called for a range of changes to be implemented if the full rollout is to have a chance of success. These include:
- Allowing alternative payment arrangements on request – allowing flexibility would ease the transition for claimants, ease the administrative burden on the DWP, and lessen the need for such a high level of personal budgeting support.
- Recognising that for some people getting online on a daily basis may not be possible – alternatives such as phone or face to face contact need to be more readily available.
- Verifying and paying housing costs much more quickly.
- Taking payments for temporary housing out of the monthly assessment process so that all costs can be met as they arise and paid promptly.
- Removing waiting days for all claimants – leaving claimants without money makes it virtually impossible to job seek effectively and put people in debt right from the start.
- Reinstating implicit consent for advisers – so that problems can be resolved as quickly and effectively as possible.
You can download and read our full response to the inquiry.
NAWRA issued the following press release on Friday 3rd March 2017:
The government has announced shock plans to restrict entitlement to the disability benefit, Personal Independence Payment (PIP).
The National Association of Welfare Rights Advisers (NAWRA) strongly refutes the claims made by government that two recent court decisions (1) in any way ‘extend’ or ‘broaden’ the meaning of the PIP regulations as claimed by government. In fact the judges simply seek to confirm the original policy intent of the DWP at the time the regulations were made. (2)
The government’s amendments seek to restrict the ability for people with mental health problems to receive help with getting around. Yet the government response to the ‘Personal Independence Payment: assessment thresholds and consultation’ of January 2012 (3) states in relation to Mobility Activity 1 (help needed with planning and following a journey) –
6.14 Concern was raised that the activity takes insufficient account of the impact of mental health conditions on mobility. We do not consider this the case. Individuals could potentially score in a number of descriptors in the activity if they cannot go outside to commence journeys because of their condition or need prompting or another person to accompany them to make a journey.
The government’s intention was clearly that Mobility Activity 1 would apply in its entirety to people with mental health problems and the judges have merely confirmed this position – there has been no change.
NAWRA asserts that the PIP amendments, both to the mobility descriptors and the daily living descriptors, amount to a substantial cut and a change from the original policy intention.
Chair of NAWRA, Alan Markey said –
‘It is not, as Theresa May has claimed, a change to ‘restore the original intention’ – it is a change to substantially move the goal posts. It is also a falsehood to say current claimants will not be affected – those currently in receipt of PIP are at risk of seeing a cut in their benefit when they are reassessed.’
Notes to editor –
-  UKUT 531 (AAC) and  UKUT 530 (AAC) – decisions of the Upper Tribunal of the Social Security Administrative Appeals Chamber
- This was clearly shown in the government responses to consultations at that time.
- As quoted at paragraph 33 of  UKUT 531 (AAC)
Our annual report for 2016 can now be downloaded and will be presented at our conference in Durham on 3rd March 2017. If you have any feedback, comments or suggestions for future activity, please let us know.
Our next meeting will take place from 10am-4pm (registration from 9.30am) on Friday 3 March at Durham Town Hall.
Find out more