Owning up: DWP finally admits official error for their failure to properly assess migrating ESA claims
Oct 4th, 2018The Department for Work and Pensions (DWP) made another climb down last month when it accepted the merits of the Judicial Review instigated by Child Poverty Action Group (CPAG) regarding thousands of Employment and Support Allowance (ESA) claimants’ historic entitlement to an income-related ESA award.
Back in December 2017, the DWP finally accepted that approximately 75,000 people may have been underpaid when ‘migrated’ to ESA from one of the old benefits such as Incapacity Benefit.At the point of migration, the DWP accepted it had failed to consider whether the claimants qualified for income-related ESA, and not just contribution based ESA. The DWP stated they would only make backdated payments to 21st October 2014, the date of an Upper Tribunal decision which the DWP claimed established that it was making the wrong decisions. Using the anti-test case rule, the DWP argued there had been an error of law therefore they would only need to backdate payment to the date of the relevant tribunal decision.
The limit to 2014 resulted in many claimants missing out. The ESA transfer process began in 2011 therefore many claimants had underpayments dating back to before 2014. The National Audit Office found that the decision not to make backdated payments for periods prior to 21st October 2014 would result in claimants, as a group, losing out on between £100 and £150 million pounds.
It was one such claimant CPAG represented when bringing the Judicial Review, arguing that the failure to assess for income-related ESA at the point of migration, was in fact an official error and therefore DWP must make backdated payments to the date of transfer to ESA.
The DWP finally conceded it was indeed an official error on their part.Last month a three judge panel of the Upper Tribunal issued a consent order making it possible for the full arrears to be paid. The next blog post considers what this will mean in practice for ESA claimants.
See: https://publications.parliament.uk/pa/cm201719/cmselect/cmpubacc/975/975.pdf for the report from the Public Accounts Committee criticising the DWP for the handling of the move to ESA.