ESA and PHI Claims

Flowerpower wrote: It has taken a long time to get to the bottom of this, and benefits totally bodged it up as usual!

I wanted to post my outcome so it can help others in the future.

Final outcome :

PHI is not classed as PHI if you are still employed (but unable to work i.e. on long term sick).

This is due to the definition of PHI under ESA Reg 72. (2)

Therefore benefits cannot take this money into account and deduct it from your ESA.

Benefits revised their incorrect decision of stopping my ESA back in Dec 2014 but failed to advise me of this and due to an incorrect suspension on my account (they had issued an incorrect letter – which I had previously advised them about) no monies had been paid to myself.

I had sent 2 letters this year to try and get an answer from my original mandatory reconsideration request which I sent in Nov 2014, but I didn’t hear a thing, until I rang them up this month.

Even then the call centre people did not understand what was going on.

To think if I hadn’t challenged the Benefits office and accepted their original decision I would have lost out on ESA that I am entitled to.

It’s been a long and stressful battle (Lots of phone calls, letters and advice gathered, many of which I haven’t talked about here)

Thanks again to everyone here that helped and I hope my thread can help someone else in the future because it simply isn’t made clear by the benefits office how they deal with PHI when you are still employed.

They themselves didn’t even know, and I think that about sums them up.

Moderators - Amended version:

Hi

I’m desperate for help as I am being investigated for fraud by the DWP.

My situation is very similar to Flowerpower’s. I applied for ESA in September 2011. I was told to do so by my HR dept. However, they had delayed in informing me of this and only did so as I was about to be paid my first PHI payment less ESA. My claim was approved and I was placed in the Contributory ESA support group and have had no problems until now.

A new data matching programme flagged me as receiving ESA and a regular income, which they investigated and established as PHI from my employer. At that point they called me in for an interview under caution. They are alleging fraud. They are claiming that I didn’t tell them about the PHI and that because I receive that PHI, I am not eligible for ESA.

My memory of that time is a little hazy as I’d had 6 months of chemo. I remember making the initial phone call claim. I cannot remember the conversation. However, there is absolutely no way I wouldn’t have mentioned the PHI. I was angry with my HR dept and I would have had to explain why I was applying, a couple of months after company/SSP ended. I don’t remember completing the original application. I do remember completing the medical assessment because I got some help from MacMillan.

The DWP don’t appear to have much evidence. They do not have my original application form although they have all my completed medical assessments. They are unable to retrieve a phone recording of my initial claim. All they have is a brief system note relating to that call. Because there is no mention of PHI in that call note, they are making the assumption that I didn’t tell them!

They also showed me leaflets I would have apparently received with the ‘uprating’ letters. The investigator pointed out the changes that you are supposed to inform them of. None of them applied to me! There was one which referred to the PHI contract arranged for a former employee. I had to explain several times that I’m not a former employee and that does not apply to me.

DWP are claiming I have received a £17K overpayment and that this monetary level would usually mean automatic prosecution. I have investigated the legislation in place at the time of my claim, and my findings concur with Flowerpower.

The 2008 ESA regulations specifically refer to a PHI policy arranged for a former employee on termination of a contract as being treated as pension income, deductible from ESA. They also explicitly refer to a PHI policy where the claimant has paid over 50% of the premium to be disregarded. However, the regulations are silent as to the situation, like mine, where PHI is received by a current employee, on long term sick leave. So surely, you have to assume that it is NOT considered as pension income.

However, the 2013 ESA regulations have removed the qualifying statement of former employee and termination of contract and it would now appear that it is a catch-all for all permanent health income policies to be treated as pension income and therefore deductible from ESA. Perhaps this is where the confusion has arisen? However, my claim was made BEFORE the 2013 regulations.

I have today contacted the fraud investigator to see if she will accept further information to help with the investigation, in particular, research on the regulations at the time of my claim. She said she will but also confirmed that she had already taken advice on the legislation from a former decision maker before I was called in for interview!

Flowerpower – if you are still here, would it be possible to let me know who reversed the decision in your favour? Moderators – is there any way I can contact Flowerpower?
Thanks

Thanks Gordon. When you say the 2008 regulations as amended, do you know when the amendments were made and where I would find them? Should I be looking at a different document to the Employment and Support Allowances Regulations 2008?
Many thanks

TSC,

I was in exactly the same situation as Flowerpower and came upon this thread as a result of a quick internet trawl when DWP took my PHI into account and effectively stopped my contributory based ESA payment in April 2016. I made my claim in July 2015 when my company stopped paying me full salary which they did for the first 6 months of illness.

Long story short (it has been a very convoluted process!) but after several letters, contact by my local MP and various phone calls, DWP called me and admitted they had made a mistake. They then re-instated my payments. I made specific reference to the legislation and interpretation quoted by Flowerpower and the DWP who contacted me accepted this as correct with no mention of the revisions to which you refer. Are you certain DWP have got this right?

In my dealings with DWP, it is clear to me that different areas of DWP interpret the rules in different ways and consistency in approach is not a given by any means.

They do not appear to have any proper records of phone calls, and the little 'system notes' are frequently inaccurate. From what I understand from your description of your own circumstances, I doubt any appeal tribunal would agree with DWP.

Like you, I've been on Chemo which makes dealing with this sort of issue doubly difficult due to levels of fatigue and other problems with concentration, but stick with it and you should eventually reach a satisfactory conclusion.