Multiple questions

Jonno

Hi.
I would be grateful for any advice regarding my claims for ESA/PIP.
In 2013 my pension company began to pay my pension as enhanced annuity even though I was 51 because they recognised my life is likely to be shorter than average.  The DWP reduced ny income support and then my ESA by the full amount of the pension which is £23 a week. I have been informed  that  personal pensions up to £85 are to be disregarded.  Is this correct? If so they owe me over £4500

My pip assessor lied on every question and I was awarded 0 points after having a lifetime award of DLA  high rate mobility and med rate care. It took over a year to get a tribunal hearing but I was  awarded mid rate mobility but no care. The judge ignored my doctors letters and used the assessment notes as his main evidence . I have written to him twice to get his reasons for the judgement so that I  can take my case to the second tier byt my letters have been ignored. What can I do?

BenefitsTrainingCo

Hi Jonno,

Point one. Income Support, and income-related ESA (which is probably what you are on now) are reduced by the full amount of your pension income, I'm afraid. It's only contributory ESA which doesn't take into account the first £85 a week. So if you were on any income-related ESA at all, I would expect it to be affected by the pension.

Point two. Regarding your tribunal hearing. Did you write to the tribunal within one month of getting your decision notice (or, if you didn't ask within a month, did you ask for a longer period, giving reasons)? If you asked within the time limit they applied (it can even be shorter than a month, if the tribunal says so), they are legally obliged to send you the reasons. There are long delays, but as long as your request was in time, you should get the written reasons. You don't say how recently the hearing was, but is it worth ringing up Her Majesty's Courts and Tribunals Service (HMCTS) at the relevant office to check they received your letters? 

If there is a long delay in getting the statement of reasons, you can apply for permission to appeal to the Upper Tribunal without these. The Upper Tribunal (UT) can, at this point, require the first tier tribunal to provide the reasons. An appeal to the UT requires an error of law, but that could include, as in your case, a failure to take evidence into account without adequate reasoning.

When you apply for permission to appeal (which you do to the first tier tribunal - the FTT) explain that you have asked for a statement of reasons but one has not been provided. However, if you did not apply for the reasons in time (you missed the one month time limit), the FTT will have to consider whether to admit the application - in this case, explain clearly what the error of law is (from what you have said, failure to take your doctor's evidence into account without explaining why), and why it is in the interests of justice to admit the application (you may have very good reasons why you didn't manage to apply for the reasons within the time limit).

As applying to the UT is complicated, if you are able to get advice and support, for example from a Citizens Advice Bureau, I strongly recommend that you do. They will be able to help you with the procedural issues and also with explaining the error of law.

Will

Jonno

Thanks Will. Unfortunately I live in Lewisham where the CAB is only open for 6 hours a week and the queue is violent. They don't so email or phone advice. I have been on a waiting list to see a benefits advisor at my local DIAL for over a year there are just too many people with problems and too few resources so I am resigned to  dealing with this myself but I can see that it puts me at a disadvantage.  It was terrifying in 2013 when I was diagnosed with early onset dementia but luckily it was a stroke and I am recovering from it but I found composing letters a challenge and the DWP was inundatiing me with them. I had to move into a derelict house as it was all I could afford. I asked them how they would treat the excess capital that I would have as this was allocated for the building work. They said that they would decide when I had moved and they had my lawyers bills of sale and purchase . On the day I moved and before they had any documents I had a call telling me that they had made a decision to enforce CIS/368/93 but as this was not legal they had no intention of notifying me.  A subject access request for my file shows the decision was made and on the same day all my benefits were cancelled. Then I was bullied , they said they would give me a 26 week disregard of the capital but this was not their final decision, they were forcing me to  work on my house 24/7 as they put me in a situation where the money I had allocated for adaptations could not be spent on builders in case they decided to change their mind on the 26 week disregard of excess capital they gave me  but with a warning that it was not their final decision and may decide to use  CIS/368/93 against me (which they did and wanted 2 years of income support to be repaid despite a tribunal decision that the 26 week disregard was the final decision) they also demanded receipts for every nail and screw so I had to work day and night which meant coming off my medication and as I was not succeeding with the time allowed in desperation I used illegal stimulants. I notified the DWP that this was how their decisions were effecting me and that they  were placing me between a rock and a hard place and that I would be harmed however I chose to proceed. They ignored me and also continued to harass me by demanding documents they already had multiple copies of and sending conflicting information that had to be dealt with as there was always the threat of stopping my benefits which they did at random.

I would have hoped that the judges on the UT would make it easier for people who cannot get  representation. I was let down by my advocate in the previous case concerning the 26 week disregard vs CIS/368/93 and the judge refuse to adjourn it until I found a new one. I thought this was hostile but he held my hand through the hearing and gave me the required outcome. The most recent decision was to give a 26,week disregard and the judge explained that was all I could oppose. He found against me meaning the disregard was the correct and final decision.  The DWP chose to ignore it though and still made a final decision to enforce CIS/368/93 saying that was always their intention. I have mostly recovered from the stroke and can see that I was bullied and even coerced to take illegal drugs and abandon my medication while having diminished responsibility.  I complained and was paid £50 consolatory payment for harassment and 3 payments of £100 for maladministration but I wasted £20000 by failing to do the work myself and losing the opportunity to use the green deal scheme to pay for heating and double glazing. When I complain about this I am ignored

Jonno

Looking at my latest award it says I am receiving contributory and income related ESA.  The only reason I cashed this pension was because the DWP had cancelled my benefits just as I moved and I had no money at all .  Because my postcode had changed my file was transferred to Belfast and I received a call giving apologies for the cancellation and told thatvthey could find no reason for it and that they did not usually give such poor service. I didn't expect to then have it deducted.by the same office. They pick you up and then drop kick you.

Jonno

Thanks Will. Unfortunately I live in Lewisham where the CAB is only open for 6 hours a week and the queue is violent. They don't so email or phone advice. I have been on a waiting list to see a benefits advisor at my local DIAL for over a year there are just too many people with problems and too few resources so I am resigned to  dealing with this myself but I can see that it puts me at a disadvantage.  It was terrifying in 2013 when I was diagnosed with early onset dementia but luckily it was a stroke and I am recovering from it but I found composing letters a challenge and the DWP was inundatiing me with them. I had to move into a derelict house and they were forcing me to  work on my house 24/7 as they put me in a situation where the money I had allocated for adoptions could not be spent in case they decided to change their mind on the 26 week disregard of excess capital they gave me  but with a warning that it was not their final decision and they might decide to use  CIS/368/93 against me (which they did and wanted 2 years of income support to be repaid despite a tribunal decision that the 26 week disregard was the final decision) they also demanded receipts for every nail and screw so I had to work day and night which meant coming off my medication and as I was not succeeding with the time allowed in desperation I used illegal stimulants. I notified the DWP that this was how their decisions were placing me between a rock and a hard place and that I would be harmed however I chose to proceed. They ignored me and continued to demand documents they already had and sending conflicting information that had to be dealt with as there was always the threat of stopping  my benefits which they did at random.
I may tell them where to shove their benefits as I own my home outright and can get an equity release on it so I am in a better position that most people.

I would have hoped that the judges on the UT would make it easier for people who cannot get  representation. I was let down by my advocate in a previous case and the judge refuse to adjourn it until I found a new one. I thought this was hostile but he held my hand through the hearing and gave me the required outcome. The DWP chose to ignore it though.

BenefitsTrainingCo

Hi again Jonno,

I understand about the problems with getting representation locally. We would never suggest that anyone tries to go to UT alone, but having said that, resources are stretched more thinly than ever before. The UT judges will be aware that it is harder for people to get representation. 

The first step is to follow the advice above to get the statement of reasons or, if that isn't possible, apply for permission to appeal without it and explain that your letters have been ignored.

I'm sorry about the ESA. You might want to consider complaining against the DWP for that loss. There are rules which say if you can take your pension from age 55 but decide not to, benefit is not affected (the rules do change once you reach pension credit age - retirement pension age for a woman). If that was the situation, you would have got your ESA in full but for having to cash in the pension because of the benefit delay.

Will

Jonno

Thanks Will. I had intended to cash in the pension but because of my health issues the company gave me an enhanced annuity allowing me to have a lump sum and a higher allowance than usual and at age 50. ( I am now 55)

Jonno

I have complained about this and received a call to say regardless of mistakes made by the DWP it was my choice to start collecting this pension ( and giggled as she said "even if it was Hobson's choice" ) 

BenefitsTrainingCo

Yes - it was your choice but you were forced into it by the DWP's delays. You would be complaining about the delay and seeking compensation for that - you understand that once you receive the pension they have to follow the rules. It's the delay that shouldn't have happened.

I'd consider taking the complaint further especially given they don't appear to have dealt with it in a respectful way.