DWP official error where do I stand?

shazer0307 · February 10

Hi, I been claiming ESA since 2011 which on all award notices I have to hand states that it is contribution based which I believe is not means tested. On that basis my husband and I agreed to cash in a small pension pot he had of around £11000 as we was to believe it would not affect my ESA in anyway. I wrote a letter to them after cashing in just to confirm what we believed to already know heard nothing for a while so decided to call them. And what a surprise we got when they said that I am not on contribution based ESA but income related ESA (somebody pressed the wrong button there words) I think this stinks and I feel they changed the goal post to suit them self's. Where do I stand any advice much appreciated.

calcotti · February 10

For old ESA claims overpayments caused by official error are not recoverable.

However I am not clear whether you are being told that your wife has been overpaid or whether her ESA is now being reduced due to the capital and your complaint is that you would not have withdrawn the money if you had known it would impact the claim.

Question also arises as to which ESA award your wife should have got. What had she been doing in the two or three years immediately prior to claiming ESA?

shazer0307 · February 10

No we would not have cashed in if we had thought it would of had an impact on the ESA as in deductions etc. The claim at present is with a decision maker and Prior to the claim I was housewife and my husband worked.

calcotti · February 10

I am still not clear - is your ESA claim ongoing but reduced by the capital or has the claim been stopped because you have gone over the £16,000 capital limit?

shazer0307 · February 10

Claim still ongoing not reduced as yet but claim with DM because I'm assuming there going to make deductions for over the £6000 limit.

calcotti · February 10

If you had no other capital before you are no over the capital limit by £5000. This would reduce an income based award by £20/week. ESA will have to apply the rules and I suppose you could make a complaint with a request for compensation if the letters you have received are definitely incorrect. Presumably however you withdrew the money with the intention of spending some of it so this excess will go down.

In terms of the type of ESA it is possible for awards to be a mix of contribution based and income based elements. Letters are notoriously badly written and can be difficult to interpret.

shazer0307 · February 10

Thanks, my point here is that we both made a decision on all information to hand don't forget they say keep this paperwork for future reference. States quite clearly based on your national insurance contributions no mention of income related should we be penalised for this.

mikehughescq · February 11

Okay I think there’s some confusion here. It’s very unusual for a couple or one of a couple to be in receipt of means-tested ESA and I’m not convinced you are or ever were. This sounds to me like you are on contrib ESA and have never declared an OP which has now been cashed in.

No decision has been made and I think you’re assuming the worst re: a recoverable overpayment when there’s no evidence this is going on that direction at all. Sit tight and await a decision. Contrib ESA can be reduced by receipt of an OP above a specified weekly amount but this isn’t that either. My suspicion is that little is about to happen at all.

calcotti · February 11

mikehughescq said:

My suspicion is that little is about to happen at all.

That makes sense to me.

shazer0307 · February 11

Thanks for that,now what about the savings part £6000 do I need to answer to what we do with my own money? I payed £2000 to my child's trust fund was that a bad idea? I need household items but nothing is open to view so if the savings sit in the bank then accumulate from other benefits being payed in and then let's say gets to £6500 where do I stand it's all very complex.

calcotti · February 11

As Mike has suggested you may be worrying unnecessarily. Until a Decision Maker comes back to you you don’t know if there is actually a problem.

How much ESA has your wife been receiving? If it is £113.55/week that would indicate a contribution based award for ESA Support Group.

shazer0307 · February 11

£301.50 every 2 wks

calcotti · February 11

shazer0307 said:

£301.50 every 2 wks

Given the amount of £150.75/week I would guess that she is in the Support Group and that you receive Carer's Allowance for looking after her so the ESA award includes a carer premium with the CA deducted. This means the award does include income based elements and is either entirely income based or could be £113.55/week contribution based with the balance income based.

calcotti · February 11

Normally giving money away to relatives could be seen as deprivation of capital. However to be deprivation of capital a motivating factor has to be to increase benefit entitlement. Given that you were under no obligation to withdraw the money I think there is an argument that regardless of how you dispose of the money it shouldn't be seen as deprivation of capital because if you wanted to maximise your benefit you wouldn't have withdrawn it.

shazer0307 · February 11

Hi, yes you are quite right my husband is my full time carer. And may I thank everyone for there advice on this post.

Will let you know how I get on when it drops on the door mat could be interesting.
Ps, what about the savings issue mentioned earlier?

calcotti · February 11

shazer0307 said: Ps, what about the savings issue mentioned earlier?

I've tried to address that in my previous response. There is an argument that regardless of how you spend the money it isn't deprivation of capital because you wouldn't have withdrawn the money at all if your motivation was to maximise benefit income. That argument may not work and a Decision Maker has to decide. While you have more than £6000 of capital the surplus will reduce your ESA amount payable by £1/week for every £250, or part thereof, over £6,000.

shazer0307 · February 11

But can they only deduct from what part of the entitlement is income related?

calcotti · February 11

shazer0307 said:

But can they only deduct from what part of the entitlement is income related?

Yes - if part of the award is contribution based that is ringfenced. The only exception is regular pension income (and some similar payments) in excess of £85/week which do reduce the contribution based amount payable. This is not that.

Have another look at the wording on your award letters to see if it is any clear now.

shazer0307 · February 11

Ah here we go this is what is says, The employment and support allowance is based on your national insurance contribution records and any additional amount the law says you need to live on.
Now reading down towards bottom of page says after deductions your income related entitlement is £151.50.

calcotti · February 11

As I said earlier ESA letters are notoriously difficult to interpret unless you already know what you expect them to say (which rather defeats the point of a letter!). An award which is a mix of contribution based and income based will be described by DWP as an income based award - are you any clearer as to whether your award includes a contribution based amount?

shazer0307 · February 11

Apart from what is written about national insurance contributions on the top of the page it doesn't mention it anywhere else.it shows how they worked it out ie: you and your partner etc which they then say gives me a total income related amount of £219.10 minus £67.60 carers allowance for your partner = £151.50 I do however receive DLA.

On another note, universal credit I believe we are invited to claim it but is it compulsory to change to it or can I stay where I am on ESA?

calcotti · February 11

Eventually you will be told that your ESA will end and be invited to claim UC instead. That is likely a couple of years away.

You can, if you wish, claim UC at anytime before that happens but at the moment there is no requirement to do so.

shazer0307 · February 11

Thanks for everybody's help here we got there in the end sadly looks like there will be deductions so providing all deductions are correct then that's just life always best to be honest take care H&S

calcotti · February 11

As you spend the money and your capital reduces keep ESA informed and they will adjust the deduction.

shazer0307 · February 13

Thanks calcotti, the wife isn't going to get any better unfortunately sad really but are the DWP really human so just of curiousity how long are deductions expected to be deducted?

calcotti · February 13

Deductions will be made for as long as the capital is over £6,000.

DWP official error where do I stand?

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