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Esa appeal rates - disability premium?

clarabelle

Hello

the dwp have reinstated & backdate my esa as of today, pending appeal. They are saying I can only get the assessment phase basic rate £74 and cannot get the disability premium that I was previously receiving while on the assessment phase - this premium was awarded because I also receive pip.

Is there any DM guidance that I can quote at them so that I get the disability premium?

Thanks in advance

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Comments

Pippa_Alumni

Hi @clarabelle, hopefully our Benefits Advisor will have some answers for you but I've just found this Decision Makers' Guide that you might find useful.

Hope this helps and good luck!

CockneyRebel

I belive that disabity premiums are only paid when in receipt of income related benefit

CR

clarabelle

Hi

Thank you. I found the details on another forum - chapter 8. Premiums are payable I n respect of ir esa if you fit criterua ( in receipt of pip la & no carer) while on assessment phase, including while under appeal. Had t b insistent but they've

clarabelle

The following extract from DM Guide Ch 44 @ 44037 2.1 reiterates that IR ESA Premiums can be paid during the ESA Assessment Phase :

"44037 ESA(IR) is paid for the claimant and any partner or partners. There is no amount for dependants. The applicable amount includes.

1.the claimant's personal allowance. This may include an amount for any partner or, in the case of a polygamous marriage, partners. (see DMG 44061). During the assessment phase the personal allowance is age related (see DMG 44058)

and

2. if appropriate

2.1 premiums

2.2 certain housing costs"

From :

44037 of DM Guide Ch 44.

BenefitsTrainingCo

clarabelle,

Hi, I think we may have answered this on another post as well, but it's worth explaining again as it is complicated.

The disability premium is NEVER payable with irESA.

However, the severe disability premium is payable, if you get the standard or enhanced daily living component of PIP, you live alone, and you do not have anyone claiming carer's allowance in respect of your care.

The severe disability premium can be paid both during the assessment phase and when ESA is being paid pending appeal.

There's also an enhanced disability premium which you can get if you get the enhanced rate daily living component of PIP (or if you get into the support group of ESA, which you might do depending on the appeal outcome).

The law that says the premiums should be included if you are getting ESA whilst waiting for your appeal hearing is reg 5(4) ESA regs 2008. That says you should get the same as you got in the assessment phase. I think the DWP are wrong if they say you can't get the severe disability premium.

Will

Nystagmite

You may have to apply for the severe disability premium, again.

clarabelle

Hi

Thank you. They have put the sdp through but only after I insisted it can be paid while in appeal, asked for the regulations that say it's not payable, explained I am in extreme hardship, that I had an appointment with my surgeon at the end of the week and reflected on how I understood why people become suicidal while in this process.
She kept insisting no one gets the premium while in appeal.
She completed the form for sdp again over the phone ( which I don't think was strictly be necessary as I was getting sdp while in the assessment phase.) .
I've bee b given erdl on appeal for pip but have been told by dwp this will not be paid until they decide if they will ' ask for clarification or appeal' and they won't do that until day 23 of the 28 day deadline.
Is it normal that they delay or appeal pip or esa tribunal decisions?

CockneyRebel

It is becoming increasingly the case that the DWP ask for an SOR following an appeal. They can only then appeal the decision on an error of law.

CR

clarabelle

Thanks cr. I can't see how they can as the tribunal have stated they relied heavily on the medical evidence. If they appeal do they need to state which particular bit of law they believe was erred?
Am.so fed up.with it all and my surgeon has just told me .that effectively he doesn't see.seem the point in.surgery as there is souch damage. Surgery is
.unlikely.toale.a.difference. I was.going.was.going.to appeal.the tribunal.decision. on the mobility but I'd rather the dwp.just agreed the tribunal decision on erdl.And.I. can use the money to.go to.dignitas. maybe I should tell them that, they'd see it.it as. A saving in the long run.

CockneyRebel

If, and it is a big if, they find an error of law then they first have to send it back to the original judge and only if he agrees then they can apply to the UTT for a set aside.
How long is your current award for ?
Sometimes it is less stressful to wait for your renewal and start preparing now having gained knowledge from this time

I really hope that you get your award soon

CR

BenefitsTrainingCo

clarabelle,

You've been given good advice on this by the others. The DWP can only appeal on an error of law. The tribunal service will right to you if they do this and yes, you should be able to see what their grounds of appeal are. The first tier tribunal judge initially has to decide whether to give permission to appeal to the DWP.

Meanwhile the statement of reasons process is a really unfortunate (and I think mean) way that the DWP 'string things out', so that they don't have to pay you yet.

Once the enhanced rate daily living of PIP is paid you should also get the enhanced disability premium in your ESA - so you might be ringing DWP again to make sure this happens! As for the SDP, make sure you get any arrears of that going back to when they stopped it.

However, just to be clear, it looks as if we are talking about two appeals now (one for ESA which hasn't happened yet, and one for PIP which has happened?) So if you weren't getting the SDP at all until the PIP appeal, then it would be right for the DWP not to pay it until they (finally) pay PIP itself. That may be why they have had to complete another form, although strictly speaking, if you're not currently getting any daily living component then you won't get the SDP back until that comes through.

Will

clarabelle

Hi

Yes, two appeals - pip has been heard ESA is in process.
I was getting SDP with my ESA, so not sure why she completed another form - and yes am sure will have to call again when edla goes through. Is there a regulation I can quote as I'm sure they will say the extra premium doesn't exist.

I have to ask for a setting aside and reconsideration of the ftt decision on mobility now.

Re he ESA tribunal my GP has just signed the risk of harm letter that black triangle produced quoting regs 29 &;35 (?) So not sure if dwp will revise their decision or decide to send someone to argue or just stall.after the tribunal.

clarabelle

Thanks @CockneyRebel

My current award is til April 19, with review to start Sept 18.
I'm.not looking forward to going through it all.again and I'm wondering if I should ask the tribunal to look at that end date given I've no chance of improvement.

BenefitsTrainingCo

Hi Clarabelle,

I'd be very surprised if they denied the existence of the enhanced disability premium (EDP). But if you wanted to have something just in case, here is the link to the decision makers' guide - see para 44101

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/620286/dmgch44.pdf

I will get back to you late today about your housing benefit but just wanted to say again that the regs I quoted about that are not the ones you need. There isn't an exception to the 1 month backdating; the exception is about when you can get a revision of a decision that you are not entitled to HB or should be entitled to more. So that doesn't help you if you are talking about a period when you are not actually covered by your claim for HB. I will explain further in your post about HB.

Will

poppyred

I was on income related ESA until I failed my medical. I am appealing it as I also lost my MR. Once I get my appeal date and go on ESA appeal rate will my SMI start being paid again. Would be so grateful of someone could answer me this, as I am worried sick that I will lose my house.

lee07

so if instead of going to tribunal dwp reinstete pip and backdate to date stopped does the sdp that was stopped at the same time get backdated also ?

poppy123456

lee07 said:

so if instead of going to tribunal dwp reinstete pip and backdate to date stopped does the sdp that was stopped at the same time get backdated also ?

If you're awarded daily living PIP and the other criteria still apply then yes, it's backdated but you have to claim it again. It's not automatically awarded.

lee07

made contact today your correct takes a week or so but also said they will backdate to when it stopped april ty

Carleokn33

I was on ESA and sdp but got no points for my hlab27 gene that is a blood disorder that I have over active white blood cells and causes ankylosing spondylitis sciatica fused chest etc ... I lost my mandatory reconsideration and now have to do tribunal the thing is I can't claim anything have been a month with nothing except my pip, in losing out in £600 a month I can't claim UC because of sdp components and JSA because of this too I'm getting a bit desperate I can see why people commit suicide I just don't know wat to do do I make a fresh ESA claim as I haven't really got any new conditions but things were not reported on my form so I do have some new stuff to report I have a x-ray and a refund rhumatilogy appointment and hopefully something worsened to help my claim I know this sounds bad but I've been on it for 5 years and my condition is only deteriating as it's my immune system and cause I get so bad u missed a few hospital appointment and tried cancelling by phone but couldn't get through so they penalise me because of this I'm just really frustrated and can't go on without any message money thankyou

Carleokn33

Sorry a few errors in my post ???

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