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Reclaiming my Severe Dissability Premium
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4 years 1 month ago #257076 by Pip
Reclaiming my Severe Dissability Premium was created by Pip
I tried getting my entitlement from DWP but they are being difficult.
I don’t even understand this letter but it doesn’t say what I want it to?
Can you please tell me how I can reclaim my entitlement and pay off my debts?
Please help?!?
As promised, below is a summary of the details of Mr Other 's case that we discussed in our conversation on . I have numbered each part for easy reference. As I mentioned, some of the electronic records relating to Mr Other 's ESA for the period from 2011 to 15.3.2012 are no longer available, and his Disability Living Allowance (DLA) computer account has also been deleted, that latter benefit having ended nearly 5 years ago. However sufficient computer and ESA clerical records remain from which to establish the following information: -
1. Mr Other claimed ESA on 15.8.2011 (the date his ESA1 claim form was received by the
Department). 2. He had previously been in receipt of Jobseeker's Allowance (JSA).
3. He was awarded ESA for the period from and including 22.7.2011; the award of ESA
comprised both the contributory and the income-related element of the Allowance, but the
Page 1 of 4
details of the specific rate of benefit awarded for the period prior to 16.3.2012 are no
longer available. 4. Mr Other was placed in the support group from 21.10.2011. 5. Although Mr Other 's DLA computer account has been deleted, other electronic records
indicate that account, when it was in existence, covered the period from 4.10.2011 to when his DLA was replaced by his Personal Independence Payment (PIP) award from 7.9.2016.
6. The DLA computer records of what components comprised Mr Other 's DLA award are no
longer available, however in the ESA3 review form he provided on 1.7.2016 (see point 16 below) he stated that as of that date he was receiving the mobility component at the lower rate and the care component at the middle rate.
7. Mr Other 's award of DLA was replaced by an award of PIP from and including 7.9.2016;
since then he has been entitled to both the mobility and daily living components of PIP, each at the enhanced rate.
8. ESA records show that by 13.3.2012 an ESA supersession decision had been made that
Mr Other was no longer entitled to the income-related element of ESA, and accordingly only to the contributory element of the Allowance, for the period from and including 7.1.2012: this was because he had started to live with a partner who also received income-related ESA and the law does not allow both members of a couple to each receive the income related element.
By or on 26.3.2012 Mr Other notified the Department that he had split from his partner; ESA records indicate he was advised at that time that if he wished to re-acquire entitlement to the income-related element of ESA again he should complete an ESA3 review form to provide the details of his new circumstances and the date from whence he would like entitlement to that element to be considered from,
10.No ESA3 review form was received from Mr Other at that time; the records indicate he
chose not to apply for the income-related element back at that time, instead continuing with just his contributory Allowance.
11. The ESA records show he had support worker involvement at that time and in the
following months with his Social Security affairs and neither Mr Other nor his support worker(s) chose to seek the re-instatement of the income-related element to his award
(you will recall we discussed on 4.2.2021 the possible reasons for this: why some people elect not to be considered for the income-related element, preferring to just receive a contributory only award, or that possibly Mr Other 's circumstances after the split from the aforementioned partner were still such as to exclude him from the income-related element).
12. The conclusion that Mr Other chose in March 2012 not to seek the reinstatement of the
income-related element at that time is supported by the fact that when he did subsequently apply in 2016 to have the income-related element re-included in his award he only asked for it from 1.9.2012 and not back to late March 2012 (see point 16 below).
13. Mr Other 's mother received Carer's Allowance for being his carer for the period from
30.9.2014 to 16.10.2016.
14.On 1.6.2016 Mr Other contacted the Department and asked to have the income-related
element added back into his ESA award again, so he was sent an ESA3 review form.
Page 2 of 4
15. On 1.7.2016 the Department received his completed ESA3 form back; Mr Other asked for
the income-related element to be added back into his award from and including 1.9.2012, stated that he wanted to receive the premiums and that receipt of the income-related element would help with NHS charges.
16. The ESA3 form constituted an application for supersession and on 11.7.2016 a
determination was made that the change of circumstance from 1.9.2012 had been notified late, so any favourable supersession arising from it would only take effect from and including the start of the ESA benefit week which included the day of Wednesday 1.6.2016, which is the date our Centre received his initial verbal request to receive the income-related element and he had returned the ESA3 review form within one month of that date (I have summarised the relevant law used to make that determination in a separate paragraph below, after these points).
VVV VILIV
17. Mr Other has a Friday to Thursday benefit week and satisfied the other conditions for
entitlement to the income-related element from at least Friday 27.5.2016 onwards, therefore, based on the determination of 11.7.2016, a supersession decision was made on 7.10.2016 adding the income-related element, with the enhanced disability premium, to his existing contributory Allowance from and including 27.5.2016 and deciding, in effect, that he was not entitled to the income-related element for any of the earlier days applied for, i.e. from 1.9.2012 to 26.5.2016.
18. The decision of 7.10.2016 was notified on the day it was made; the decision was then
revised on 13.2.2017 to include the severe disability premium from 27.5.2016, with that revised decision being notified on 13.2.2017.
19. The decision of 7.10.2016, as revised on 13.2.2017, was not disputed by Mr Other and the
standard one-month statutory dispute period ended on 13.3.2017, with the absolute time limit for making an application for revision against it under the "any ground" provision, i.e. a
mandatory reconsideration request, expiring on 13.3.2018. 20. Mr Other has continued to be entitled to the contributory and the income-related elements
of ESA since 27.5.2016.
The determination of 11.7.2016 and the supersession decision of 7.10.2016 were based on the following legislation:
Ground for supersession:
Regulation 6(1) & (2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.
Effective date of the supersession:
Regulation 7(1) & (2)(b)(i) of the same Regulations.
The latter regulation means that a change of circumstance that leads to an advantageous change in a person's entitlement must normally be notified by the claimant to the appropriate office (for ESA purposes that is this Centre) within one month of its occurrence for the resulting supersession to take effect from when the change occurred or, in the circumstances of this case, the start of the ESA benefit week in which the change occurred. The law provides that that one-month period within which the favourable change of circumstance should normally be notified to the appropriate office can be extended up to an absolute maximum of 13 months from when the change occurred if certain prescribed conditions are satisfied. This is set out in regulation 8 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.
Page 3 of 4
If a change of circumstance is notified late, i.e. outside the standard one-month period within which it should be notified to the appropriate office, and outside any such longer period of time as is granted under regulation 8, then the law prescribes that any resulting supersession advantageous to the claimant can only take effect from when the notification of the change was received by the appropriate office or, in this case, the start of the ESA benefit week in which the notification was received.
In this case 1.6.2016 (the date that Mr Other notified us on that he wished to receive the income-related element) was more than 13 months after 1.12.2012 (the date he was seeking it from). Therefore, even if he had had excellent reasons throughout that time for the lateness of his notification / application, the law excluded the supersession decision of 7.10.2016 from taking effect earlier than 27.5.2016.
With regard to the period prior to 27.5.2016 it is possible that Mr Other satisfied the other conditions for entitlement to the income-related element of ESA, with at least one of its constituent premiums (the enhanced disability premium), for a significant period of that time, and possibly the severe disability premium too, albeit for a much shorter spell before his
ther started to receive Carer's Allowance for looking after him. Unfortunately, because Mr Other did not make his application for supersession sooner, due to the limiting effect of
regulation 7(1) & (2)(b)(i) the increase in his entitlement, through the re-inclusion in his award of the income-related element, can only take effect from and including 27.5.2016.
This means there are no arrears of ESA due to Mr Other .
I understand that Mr Other will be very disappointed by this response and I am sorry I cannot relay a more favourable conclusion to him.
If you would like clarification or further explanation of any of the points I have covered in this letter, or you think we have not applied the law correctly in Mr Other 's case, you are welcome to contact me.
Yours sincerely,
I don’t even understand this letter but it doesn’t say what I want it to?
Can you please tell me how I can reclaim my entitlement and pay off my debts?
Please help?!?
As promised, below is a summary of the details of Mr Other 's case that we discussed in our conversation on . I have numbered each part for easy reference. As I mentioned, some of the electronic records relating to Mr Other 's ESA for the period from 2011 to 15.3.2012 are no longer available, and his Disability Living Allowance (DLA) computer account has also been deleted, that latter benefit having ended nearly 5 years ago. However sufficient computer and ESA clerical records remain from which to establish the following information: -
1. Mr Other claimed ESA on 15.8.2011 (the date his ESA1 claim form was received by the
Department). 2. He had previously been in receipt of Jobseeker's Allowance (JSA).
3. He was awarded ESA for the period from and including 22.7.2011; the award of ESA
comprised both the contributory and the income-related element of the Allowance, but the
Page 1 of 4
details of the specific rate of benefit awarded for the period prior to 16.3.2012 are no
longer available. 4. Mr Other was placed in the support group from 21.10.2011. 5. Although Mr Other 's DLA computer account has been deleted, other electronic records
indicate that account, when it was in existence, covered the period from 4.10.2011 to when his DLA was replaced by his Personal Independence Payment (PIP) award from 7.9.2016.
6. The DLA computer records of what components comprised Mr Other 's DLA award are no
longer available, however in the ESA3 review form he provided on 1.7.2016 (see point 16 below) he stated that as of that date he was receiving the mobility component at the lower rate and the care component at the middle rate.
7. Mr Other 's award of DLA was replaced by an award of PIP from and including 7.9.2016;
since then he has been entitled to both the mobility and daily living components of PIP, each at the enhanced rate.
8. ESA records show that by 13.3.2012 an ESA supersession decision had been made that
Mr Other was no longer entitled to the income-related element of ESA, and accordingly only to the contributory element of the Allowance, for the period from and including 7.1.2012: this was because he had started to live with a partner who also received income-related ESA and the law does not allow both members of a couple to each receive the income related element.
By or on 26.3.2012 Mr Other notified the Department that he had split from his partner; ESA records indicate he was advised at that time that if he wished to re-acquire entitlement to the income-related element of ESA again he should complete an ESA3 review form to provide the details of his new circumstances and the date from whence he would like entitlement to that element to be considered from,
10.No ESA3 review form was received from Mr Other at that time; the records indicate he
chose not to apply for the income-related element back at that time, instead continuing with just his contributory Allowance.
11. The ESA records show he had support worker involvement at that time and in the
following months with his Social Security affairs and neither Mr Other nor his support worker(s) chose to seek the re-instatement of the income-related element to his award
(you will recall we discussed on 4.2.2021 the possible reasons for this: why some people elect not to be considered for the income-related element, preferring to just receive a contributory only award, or that possibly Mr Other 's circumstances after the split from the aforementioned partner were still such as to exclude him from the income-related element).
12. The conclusion that Mr Other chose in March 2012 not to seek the reinstatement of the
income-related element at that time is supported by the fact that when he did subsequently apply in 2016 to have the income-related element re-included in his award he only asked for it from 1.9.2012 and not back to late March 2012 (see point 16 below).
13. Mr Other 's mother received Carer's Allowance for being his carer for the period from
30.9.2014 to 16.10.2016.
14.On 1.6.2016 Mr Other contacted the Department and asked to have the income-related
element added back into his ESA award again, so he was sent an ESA3 review form.
Page 2 of 4
15. On 1.7.2016 the Department received his completed ESA3 form back; Mr Other asked for
the income-related element to be added back into his award from and including 1.9.2012, stated that he wanted to receive the premiums and that receipt of the income-related element would help with NHS charges.
16. The ESA3 form constituted an application for supersession and on 11.7.2016 a
determination was made that the change of circumstance from 1.9.2012 had been notified late, so any favourable supersession arising from it would only take effect from and including the start of the ESA benefit week which included the day of Wednesday 1.6.2016, which is the date our Centre received his initial verbal request to receive the income-related element and he had returned the ESA3 review form within one month of that date (I have summarised the relevant law used to make that determination in a separate paragraph below, after these points).
VVV VILIV
17. Mr Other has a Friday to Thursday benefit week and satisfied the other conditions for
entitlement to the income-related element from at least Friday 27.5.2016 onwards, therefore, based on the determination of 11.7.2016, a supersession decision was made on 7.10.2016 adding the income-related element, with the enhanced disability premium, to his existing contributory Allowance from and including 27.5.2016 and deciding, in effect, that he was not entitled to the income-related element for any of the earlier days applied for, i.e. from 1.9.2012 to 26.5.2016.
18. The decision of 7.10.2016 was notified on the day it was made; the decision was then
revised on 13.2.2017 to include the severe disability premium from 27.5.2016, with that revised decision being notified on 13.2.2017.
19. The decision of 7.10.2016, as revised on 13.2.2017, was not disputed by Mr Other and the
standard one-month statutory dispute period ended on 13.3.2017, with the absolute time limit for making an application for revision against it under the "any ground" provision, i.e. a
mandatory reconsideration request, expiring on 13.3.2018. 20. Mr Other has continued to be entitled to the contributory and the income-related elements
of ESA since 27.5.2016.
The determination of 11.7.2016 and the supersession decision of 7.10.2016 were based on the following legislation:
Ground for supersession:
Regulation 6(1) & (2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.
Effective date of the supersession:
Regulation 7(1) & (2)(b)(i) of the same Regulations.
The latter regulation means that a change of circumstance that leads to an advantageous change in a person's entitlement must normally be notified by the claimant to the appropriate office (for ESA purposes that is this Centre) within one month of its occurrence for the resulting supersession to take effect from when the change occurred or, in the circumstances of this case, the start of the ESA benefit week in which the change occurred. The law provides that that one-month period within which the favourable change of circumstance should normally be notified to the appropriate office can be extended up to an absolute maximum of 13 months from when the change occurred if certain prescribed conditions are satisfied. This is set out in regulation 8 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.
Page 3 of 4
If a change of circumstance is notified late, i.e. outside the standard one-month period within which it should be notified to the appropriate office, and outside any such longer period of time as is granted under regulation 8, then the law prescribes that any resulting supersession advantageous to the claimant can only take effect from when the notification of the change was received by the appropriate office or, in this case, the start of the ESA benefit week in which the notification was received.
In this case 1.6.2016 (the date that Mr Other notified us on that he wished to receive the income-related element) was more than 13 months after 1.12.2012 (the date he was seeking it from). Therefore, even if he had had excellent reasons throughout that time for the lateness of his notification / application, the law excluded the supersession decision of 7.10.2016 from taking effect earlier than 27.5.2016.
With regard to the period prior to 27.5.2016 it is possible that Mr Other satisfied the other conditions for entitlement to the income-related element of ESA, with at least one of its constituent premiums (the enhanced disability premium), for a significant period of that time, and possibly the severe disability premium too, albeit for a much shorter spell before his
ther started to receive Carer's Allowance for looking after him. Unfortunately, because Mr Other did not make his application for supersession sooner, due to the limiting effect of
regulation 7(1) & (2)(b)(i) the increase in his entitlement, through the re-inclusion in his award of the income-related element, can only take effect from and including 27.5.2016.
This means there are no arrears of ESA due to Mr Other .
I understand that Mr Other will be very disappointed by this response and I am sorry I cannot relay a more favourable conclusion to him.
If you would like clarification or further explanation of any of the points I have covered in this letter, or you think we have not applied the law correctly in Mr Other 's case, you are welcome to contact me.
Yours sincerely,
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- LL26
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4 years 1 month ago #257087 by LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by LL26 on topic Reclaiming my Severe Dissability Premium
Hi Pip,
Wow, that is an awful lot of information to try and decipher!
Ok, let me try and explain the important things -
ESA entitlement - it seems that when you first claimed ESA back in mid 2011, there was a contribution based element, topped up with an income based element.
(ESAcb is awarded when who can not work through ill-health, and have paid sufficient NI Contributions in previous years - it is not means tested - if you qualify for this, but have no other income, it is likely that you fall under the minimum allowance rate, and hence you can receive income based ESA to pay for the difference.)
You appeared to move in with a partner in 2012, but legally you can't have 2 people claiming single rate ESAib when they are a couple - hence it seems your ESAib claim was cancelled, and you reverted back to ESAcb. In March 2012 you notified DWP that you had split up, but according to what they say you never reclaimed ESAib.
In June 2016, you asked DWP to reassess your claim for ESAib, and this was accepted. It was back dated until 27th May 2016 as I think this was the beginning of the benefit week in which you claimed. However, you had by now realised that you should have reverted to ESAib back in 2012. Unfortunately this could not be backdated. There is no obvious mistake by DWP, they had asked you to complete an income form if you wanted to reclaim ESAib. NO form was returned. Time passed, and the overall limit for appeal (13months) had also passed, hence this could not be backdated beyond 27th May which was the earliest day legally possible.
During this time, you had either been on DLA or had transferred to PIP. Your mum was claiming Carer's Allowance fro, September 2014 until 16th October 2016. Claimants on ESAib can receive the SDP (severe disability premium) if they receive at least mid-rate care DLA or standard Daily Living for PIP, live alone, and no one claims Carer's Allowance for them. Since your mum was claiming CA then SDP can not be paid. However, by mid October 2016 CA for your mum ended. So you should be able to get SDP from that time onwards, assuming the other criteria still applied. I am not sure why the SDP was subsequently awarded from 27th May 2016, when CA was still being paid to your mum, unless the end date for CA provided is actually incorrect and that ended sooner. However, it seems that DWP had all this information so it is likely that any overpayment will not be recoverable.
In addition to the SDP you hgave been paid Enhanced Disability Premium - this is when you are placed into the Support Group and receive Enhanced Daily Living under PIP. So you appear to have awarded this correctly.
So, I think that everything is correct - you can get ESAib (which includes the amount for ESAcb topped up to the personal allowance limit - which is the ESA Support Group Rate, EDP and SDP ) Back dating can not go further than the claim week at the end of May 2016, as further backdating is prohibited by law. You will be able to continue to receive the ESAib at the above rate until your circumstances change.
It is really important to not only notify DWP when circumstances change, but to consider the implications of what has happened. I suspect that with everything going on when you/your partner split up that you didn't realise the importance of checking your benefits and seeing what you were entitled to, and was it correct. At these times I think it is vital to seek advice from a welfare benefits advisor(eg CAB) who can make sure that benefit entitlement is reached.
I appreciate that the above information will be disappointing to you, but I can not see how you would be entitled to receive any backdated money from 2012 until May 2016.
LL26
Wow, that is an awful lot of information to try and decipher!
Ok, let me try and explain the important things -
ESA entitlement - it seems that when you first claimed ESA back in mid 2011, there was a contribution based element, topped up with an income based element.
(ESAcb is awarded when who can not work through ill-health, and have paid sufficient NI Contributions in previous years - it is not means tested - if you qualify for this, but have no other income, it is likely that you fall under the minimum allowance rate, and hence you can receive income based ESA to pay for the difference.)
You appeared to move in with a partner in 2012, but legally you can't have 2 people claiming single rate ESAib when they are a couple - hence it seems your ESAib claim was cancelled, and you reverted back to ESAcb. In March 2012 you notified DWP that you had split up, but according to what they say you never reclaimed ESAib.
In June 2016, you asked DWP to reassess your claim for ESAib, and this was accepted. It was back dated until 27th May 2016 as I think this was the beginning of the benefit week in which you claimed. However, you had by now realised that you should have reverted to ESAib back in 2012. Unfortunately this could not be backdated. There is no obvious mistake by DWP, they had asked you to complete an income form if you wanted to reclaim ESAib. NO form was returned. Time passed, and the overall limit for appeal (13months) had also passed, hence this could not be backdated beyond 27th May which was the earliest day legally possible.
During this time, you had either been on DLA or had transferred to PIP. Your mum was claiming Carer's Allowance fro, September 2014 until 16th October 2016. Claimants on ESAib can receive the SDP (severe disability premium) if they receive at least mid-rate care DLA or standard Daily Living for PIP, live alone, and no one claims Carer's Allowance for them. Since your mum was claiming CA then SDP can not be paid. However, by mid October 2016 CA for your mum ended. So you should be able to get SDP from that time onwards, assuming the other criteria still applied. I am not sure why the SDP was subsequently awarded from 27th May 2016, when CA was still being paid to your mum, unless the end date for CA provided is actually incorrect and that ended sooner. However, it seems that DWP had all this information so it is likely that any overpayment will not be recoverable.
In addition to the SDP you hgave been paid Enhanced Disability Premium - this is when you are placed into the Support Group and receive Enhanced Daily Living under PIP. So you appear to have awarded this correctly.
So, I think that everything is correct - you can get ESAib (which includes the amount for ESAcb topped up to the personal allowance limit - which is the ESA Support Group Rate, EDP and SDP ) Back dating can not go further than the claim week at the end of May 2016, as further backdating is prohibited by law. You will be able to continue to receive the ESAib at the above rate until your circumstances change.
It is really important to not only notify DWP when circumstances change, but to consider the implications of what has happened. I suspect that with everything going on when you/your partner split up that you didn't realise the importance of checking your benefits and seeing what you were entitled to, and was it correct. At these times I think it is vital to seek advice from a welfare benefits advisor(eg CAB) who can make sure that benefit entitlement is reached.
I appreciate that the above information will be disappointing to you, but I can not see how you would be entitled to receive any backdated money from 2012 until May 2016.
LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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4 years 1 month ago #257241 by Pip
Replied by Pip on topic Reclaiming my Severe Dissability Premium
Can I ask for an anytime revision?!?
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- Gary
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4 years 1 month ago #257243 by Gary
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gary on topic Reclaiming my Severe Dissability Premium
Hi Pip
To ask for an 'anytime revision' I think you’ll have to try and establish that there has been an official error - para 5(a) of reg 3 of decisions and appeals regulations.
If you are successful then an any time revision will take the decision back to the original date. You may need help from a welfare rights worker to challenge a decision.
Gary
To ask for an 'anytime revision' I think you’ll have to try and establish that there has been an official error - para 5(a) of reg 3 of decisions and appeals regulations.
If you are successful then an any time revision will take the decision back to the original date. You may need help from a welfare rights worker to challenge a decision.
Gary
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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