Benefits charity Child Poverty Action Group (CPAG) has launched a court battle to stop the DWP pocketing £150 million pounds unlawfully taken from ESA claimants pockets.
Last month we reported that over 65,000 claimants who were transferred from incapacity benefit to ESA were owed sums ranging from £2,500 to £20,000 because of errors by the DWP.
However, although the DWP is paying back £340 million it withheld from claimants it is hanging on to another £150 million.
The DWP claims that the law prevents it paying back money owed from before a court ruling was made on 21 October 2014, even though the underpayments date back to 2011 in some cases.
However, CPAG is arguing that the date of the hearing is not relevant because the DWP had issued guidance from 2011 onwards telling decision makers the correct way to calculate ESA for IB transfer claimants. So this was not a question of a misunderstanding of the law which a court had to correct, it was simply decision makers failing to follow their own official guidance.
According to CPAG:
“The DWP has confirmed that it will defend its decision following the charity’s application for judicial review proceedings last month, although, given the number of people involved and potential amount of money at stake, it has agreed to the case being expedited.
“CPAG is taking the case on behalf of a claimant who was underpaid from 2012. He is one of 70,000 disabled individuals in Great Britain who the Government accepts may have been underpaid ESA, in some cases from 2011 onwards. The DWP claims it can only pay arrears back to 21 October 2014 because it was then that an Upper Tribunal decision demonstrated that it was assessing awards in the wrong way and thus section 27 of the Social Security Act 1998 prevents payment for prior periods.
“But CPAG argues that the oversight which resulted in underpayments arose from an official error - which should be corrected in full - rather than from an error of law which was only shown to be such from a Tribunal decision.
“The charity’s legal team point out that DWP internal guidance from 2011 explained the correct way to calculate entitlement to ESA as part of the transfer process so it is not the case that it only became clear to the DWP that the awards were wrong as a result of the decision on 21 October 2014. As such, they argue, the 70,000 claimants are entitled to receive arrears from the start of the period for which they were underpaid, even if that was before 21 October 2014.”
Child Poverty Action Group’s solicitor Carla Clarke said:
“Poor and inadequate DWP processes have left up to seventy thousand disabled individuals without the support they are entitled to. Justice requires that the DWP error is corrected in its entirety – and full redress provided for the people affected, many of whom are owed arrears from 2011.”