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Enhanced Disability Premium Backdating Refused...Going to Tribunal

robdx

Hi I have started a new thread as things have moved on from the old thread but the background to my case is here https://forum.scope.org.uk/discussion/93866/esa-income-related-top-up-please-help/p1

Background:
I claimed old style ESA contribution based back in jan 2016, was told by jobcenter to claim contribution based as was easier and quicker route and was given no reason to doubt their word(nieve maybe!!)
In July 2022 a support worker questioned why I wasn't getting EDP as income related element, entitling me to COL and free precriptions, and I should have got this premium from the start of the claim as I lived alone and had no other income from that date and still the same today. I replied I wasn't aware I could, after much frustrating calls to DWP they finally sent out a ESA3 form which was filled in and returned...

While they added the EDP to the claim they refused to backdate to 2016 saying it was a change of circumstances that wasn't reported, I requested an MR which has also been turned down for the following:
1.Apparantly on my initial application I requested contribution only...i'm pretty sure I didnt(why would I if there was a chance i qualified for extra)
2. I never returned the ESA2 form sent out twice on 2 consequetive days??..I never recieved an ESA2
3. I stated I was badly advised to claim contribution based but they have no record of me being advised
So there is no basis in law to back date

I have lodged a tribunal with CAB assistance so I am looking to gather evidence so has anyone any experience of getting premiums backdated?? as maybe a few cases would give me some leverage

this link is to an upper tribunal decision in a similar case which appears to back me up https://administrativeappeals.decisions.tribunals.gov.uk/Aspx/view.aspx?id=4349

I would really appreciate any guidance, tips or previous experiences as I believe I have been treated wrongly here

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robdx

I have now got a tribunal date of 29th of September

In the tribunal bundle they are now claiming that I intially asked for contribution based only, then they claim i asked to add on income based in another call 2 weeks later...I did not do this 100% sure I didnt but they have sent a list which shows all calls made as evidence, does this prove anything? or should I be requesting a recording of this call? I feel they are lieing through their teeth
Could anyone offer any guidance as it feels a bit like my word against theirs but the link to upper tribunal case in first message finds that a judge ruled there should be no need to make a seperate claim for both elements. Anyone able to help please

poppy123456

There's lots of people who have been owed money for disability premiums. In my opinion if it's just a call list then i don't know how this proves anything other than you rang them on X date.

As i mentioned on your first thread quite sometime ago i think that DWP are wrong not to backdate money that's rightfully owed to you. You didn't receive it, it's as simple as that.

As for requesting a recording of the call then DWP do not record all phone calls, only some are recorded for training purposes.

robdx

poppy123456 said:

There's lots of people who have been owed money for disability premiums. In my opinion if it's just a call list then i don't know how this proves anything other than you rang them on X date.

As i mentioned on your first thread quite sometime ago i think that DWP are wrong not to backdate money that's rightfully owed to you. You didn't receive it, it's as simple as that.

As for requesting a recording of the call then DWP do not record all phone calls, only some are recorded for training purposes.

Thank you Poppy, and nice to hear from you again, I hope you are well.

They do seem dead set on not giving it to me, it went from refusing initially by saying its only for those coming from incapacity. Then it was we can't do it because its a change of circumstances. At MR it became we cant do it because you asked for contribution only, to now at pre tribunal stage to say I asked for a form and failed to return it.
I guess I just have to hope the upper tribunal report I submitted as evidence is enough to convince the judge. I was hoping requesting a call recording would show evidence that i am convinced I did not request a form when they claim I did.
Finally, if I win that would mean I have paid 6 years worth of prescriptions, eye tests and dental fees that i should not have paid, is there a process to claim that back?

poppy123456

In my opinion everything they've said is total nonesense. For all of those refunds must be claimed within 3 months of the date you made payment.

https://faq.nhsbsa.nhs.uk/knowledgebase/article/KA-03917/en-us

https://faq.nhsbsa.nhs.uk/knowledgebase/article/KA-03927/en-us

https://faq.nhsbsa.nhs.uk/knowledgebase/article/KA-03815/en-us

robdx

poppy123456 said:

In my opinion everything they've said is total nonesense. For all of those refunds must be claimed within 3 months of the date you made payment.
https://faq.nhsbsa.nhs.uk/knowledgebase/article/KA-03917/en-us
https://faq.nhsbsa.nhs.uk/knowledgebase/article/KA-03927/en-us
https://faq.nhsbsa.nhs.uk/knowledgebase/article/KA-03815/en-us

Thank you
I guess now I have the date for tribunal im getting a little anxious

Hannah_Alumni

Keeping everything crossed for you for tribunal @robdx

I hope the community can continue to be a support for you

robdx

Just a quick update I have been given an advocate from Kirklees council welfare advice via CAB, even though I registered him with tribunal(and confirmed) I still had to ring DWP to get a copy of tribunal bundle sent to him as they failed to do so. I then ended up getting a call from someone at ESA having done a pre tribunal review, they are still saying I specifically asked not to be assessed for income based at start of claim and therfore cannot be backdated as they sent 2 forms out and I didnt return either as I didn't get them and there is no basis in law to backdate

WhatThe

Send them the link and summary of that ruling

robdx

WhatThe said:

Send them the link and summary of that ruling

I did, if you refer to the upper tribunal case I linked above. Its in the bundle and DWP have commented on it in their evidence saying its irrelevent and not related to my case, but i'm convinced it is

WhatThe

So do I and I'm sure the Tribunal will put this right

robdx

WhatThe said:

So do I and I'm sure the Tribunal will put this right

I hope you are right, im just anxious about DWPs claim I specifically asked for contribution only...As I recall I did the application over the phone and was asked contributions or income based, at no piont was it mentioned I could get both it was pretty much a case of one or the other and as my NI was up to date I had been told to do contribution
Then they also claim I rang back and asked for income based and they sent a form out, what actually happened was I discovered I could not get free prescriptions on contribution based and rang to ask if I could have income based instead to be told no as I had to have contribution based due to NI contributions being up to date and no form was received nor was it ever mentioned an income based top up is possible
DWP have twisted both these calls and implied i'm at fault so no basis in law to backdate

WhatThe

Job Centres don't admit mistakes! No, there is no transcript of a call after 13 months.

Pretty sure there's an ongoing LEAP exercise for cases like yours

robdx

WhatThe said:

Job Centres don't admit mistakes! No, there is no transcript of a call after 13 months.

Pretty sure there's an ongoing LEAP exercise for cases like yours

No you are right there, The woman from ESA who added on the IR top up was not aware it was even possible to have the top up on contribution based until she had spoken to a senior manager
I think the LEAP exercise is only for those that came off incapacity isn't it? I didnt

WhatThe

Maybe so but the same principle applies - the correct assessment of entitlement from the start of your claim

There is another LEAP exercise relating to Housing Benefit/Council Tax Benefit alterations and underpayments

robdx

WhatThe said:

Maybe so but the same principle applies - the correct assessment of entitlement from the start of your claim

There is another LEAP exercise relating to Housing Benefit/Council Tax Benefit alterations and underpayments

I did a quick search and found this which is an interesting read, again its from a case involving Incapacity to ESA but might be worth adding to the evidence for consideration https://www.ombudsman.org.uk/making-complaint/what-we-can-and-cant-help/how-we-have-helped-others/woman-missed-out-benefits-because-dwp-error-and-denied-compensation

WhatThe

Excellent research yes!

robdx

Another update
My tribunal hearing set for the 29th has been indefinitely postponed due to OCS security being on strike that day. Say they will write with a new date

Adrian_Scope

That's frustrating @robdx, I hope you're not waiting too long for a new date. Keep us updated.

WhatThe

Maybe, just maybe they're still reconsidering the facts of the case and will come to their senses soon

robdx

WhatThe said:

Maybe, just maybe they're still reconsidering the facts of the case and will come to their senses soon

That would be very nice, but its been postponed due to a security guard strike at the venue. I had to call ESA to get a copy of tribunal bundle sent to my advocate and I asked them if they had done a pre tribunal review and was told no as they know they are right and there is no provision in law etc