Enhanced Disability Premium Backdating Refused...Going to Tribunal

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Comments

  • poppy123456
    poppy123456 Online Community Member Posts: 63,451 Championing
    You're welcome. I've always thought that DWP are totally wrong here!
  • robdx
    robdx Online Community Member Posts: 61 Contributor
    You're welcome. I've always thought that DWP are totally wrong here!
    As do I and most people I think, depending on the outcome I am looking into putting a complaint to ICE or ombudsman about the hardship and stress impact this has all caused 
  • Lou67
    Lou67 Online Community Member Posts: 8,676 Championing

    @robdx
    I just want to wish you all the best for tomorrow I hope it goes well for you. Take care. 
  • robdx
    robdx Online Community Member Posts: 61 Contributor
    Lou67 said:

    @robdx
    I just want to wish you all the best for tomorrow I hope it goes well for you. Take care. 
    Thank you Lou67 :)
  • Rosie_Scope
    Rosie_Scope Posts: 4,753 Scope Online Community Coordinator
    Hope it goes well today @robdx, keep us posted :)
  • Albus_Scope
    Albus_Scope Posts: 8,695 Scope Online Community Coordinator
    Keeping everything crossed for you @robdx. :)
  • robdx
    robdx Online Community Member Posts: 61 Contributor
    It was ajourned

    My advocate(who was top notch) argued that ESA is one benefit by citing the upper tribunal decision I submitted as evidence and the judge has accepted that. he also argued that DWP were fully aware that I live alone and no other income as it was on the phone application of which the notes are in the evidence, it was also on the same form how ill I was at the time and advocate pointed out that DWP should have had a responsibility to offer extra support to a vunerable claimant and that due to my circumstances a decision maker should have known that would have given me entitlement to both elements. The judge and attending DWP advocate both did not refute this.
    The judge pointed out that the decision not to backdate had been based on the addition of income based being a new claim arising from change of circumstance(it was on the log in the evidence as COC) and that it was clear to the judge it was not a new claim and should have been a supersession, so they had applied the wrong rules.
    Then she queried the call I made 2 days after the original decision (11/01/2016) which was logged in the evidence, the judge says that should have been treated as an MR to add on income based, which was within the legal 30 day timeframe. She asked the DWP man to explain why it was not treated as an appeal or MR at that point, there was nothing in the evidence to explain this apart from the claim an ESA2 form was sent. The judge accepted this form did not arrive as she believes a missing form would have been chased up a long time before the 6 year gap.
    The judge told to DWP to find out why this was not acted upon and why it was not treated as an appeal following my call on 11/01/2016, hence the adjournment, she says she has to give the DWP an oportunity to answer this to make a final decision...so at some point will have to do it all again.

    My advocate is very confident they will not be able to give an adequate answer and he has requested the judge take the next hearing, he says he believes the dwp are backed into a corner and will have to pull something big out of the bag and he believes I will win and that im 90% won and they may even concede....me i'm not so sure as the dwp seem to be good at bluffing their mistakes.

    I just want it all to be over, but now looks like another few months of waiting 
  • worried33
    worried33 Online Community Member Posts: 603 Pioneering
    It is interesting the DWP were in attendance, I think without that you may well have had a decision already, please let us know of any further updates.  Also am sorry its still going on, but hopefully it wont be as along as multiple months.
  • robdx
    robdx Online Community Member Posts: 61 Contributor
    worried33 said:
    It is interesting the DWP were in attendance, I think without that you may well have had a decision already, please let us know of any further updates.  Also am sorry its still going on, but hopefully it wont be as along as multiple months.
    I will, I'm trying to take the positives out of it like the judge believing it was never just a change of circumstances and that she will be the judge at the next hearing 
  • Jimm_Scope
    Jimm_Scope Posts: 5,446 Scope Online Community Specialist
    In my knowledge the DWP usually send an advocate to these things? The decision can take a little time sometimes. 

    Wishing you the best of luck @robdx
  • robdx
    robdx Online Community Member Posts: 61 Contributor
    In my knowledge the DWP usually send an advocate to these things? The decision can take a little time sometimes. 

    Wishing you the best of luck @robdx
    Thank you, the judge was really good and explained why she was having to adjourn, she says she has to give the DWP an oportunity to provide an answer as to why my call 2 days after the award in 2016 was not acted on and not treated as a MR, she seemed to infer that legally this should have happened and the DWP advocate seemed to accept this too. He could not provide an explaination as their evidence was all based on them assuming my request to add income related was a new claim to add said income related element. The judge has said it was obvious to her that it was a request to supercede or review the existing claim because new claims for legacy ESA cannot be accepted, and if it was a new claim then legally they were right not to backdate. She stated they had applied the wrong rules and the DWP guy did not refute this. So it all now hinges on the DWP giving a satisfactory reason as to why that call in jan 2016 was not treated as an MR which given they had full information on my circumstances, should have led to the income related element adding on at that point. My advocate is confident they cannot give a good enough reason and that they may possibly concede 
  • robdx
    robdx Online Community Member Posts: 61 Contributor

    Well nearly 2 years after first asking for a review to add on the income based top up, its finally all over, and I have won. The tribunal sat again this morning, after adjourning to get more info from the DWP. The extra evidence supplied by the DWP did not particularly answer the questions asked by the judge. The judge had asked them to provide an answer as to why they had not considered my request for a review, instead treating it as a new claim. Their response was that they had sent out an ESA2 form in jan 2016 and not had it returned and that because it had not been returned(hard to return a form I was never sent) they were not at fault, even going so far as to say that due to me having a mental health problem, maybe i simply forgot to fill it in and they cannot be blamed. Anyway the judge agreed that they had enough information from the initial application to know I was living alone with no other income.

    The DWP in effect shot themselves in the foot by claiming that they could not get the information because they could not use the original application due to data protection, so they needed to send out an ESA2 form, but as my advocate pointed out, the date they claim the form was sent was only a month after the initial application.

    So the bottom line is I won and provided they don't appeal I should get the backpay from 12/01/2016 to 14/07/2022.

    So can I ask 1 last question, I want to put in a complaint about the way the DWP handled all this, for 6 years they left me having to face hardship by having no access to free prescriptions, often having to go without power, heating or eating, or going without the prescription medication. I also require eye tests and new glasses every 2 years which should have cost far less than it did, again causing great stress and hardship. Then there is dental care, while I was wrongly on contribution only I had to pay for dental care which I simply could not afford and lost my place at an nhs dentist. I know now that yes I could have got a certificate but did not know at the time. How can I raise this complaint please

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