IB-ESA error backpayments 'on hold'.

[pmlindyloo]

We're still confused and I know I said we were going to wait to see if a brown envelope drops through the letter box but one of you lovely people might be able to give me a yes or no answer.

in 2013 hubby was in the support group .I didn't work and no savings.
On the letter he received it stated he would get£190.48 a week.
How it was worked out is as follows as stated in the letter

Your living expenses £71.70
Limited capability for work addition
Extra money because you are in the support group £34.80
Which gives a total Income Related amount £106.50

Income and Benefits
No income will be taken off your ESA

Your IR amount is £106.50 less 0.00 so you would of been entitled to £106.50

However because you are entitled to Contribution based ESA we will pay you £190.48.

Top up payment
included in your ESA is a top up payment £83.98
which ensures you won't see a reduction in the level of your benefit entitlement as a result of the change to ESA .

Now reading that we're confused but we don't think we will get and back pay because of the top up payment.If that's the case we were one that was paid properly from the start.
You

Why don't you copy and paste this question on a new thread? Have tried to trawl through your past posts with no success!

We will need to know what rates of DLA/PIP you were on during the time period you are talking about and whether anyone was claiming Carer's Allowance.

From what you have posted it seems that they did not assess you for income related ESA as a couple and add on any premiums that you were due so it could be that you are entitled to some back pay.

However, I did read that your OH was receiving private pensions which would be deducted from income based ESA £ for £. How much were these pensions?

So it could equally be that because of your OH's 'top up' on his move from IB to ESA it was better for the claim to be assessed as a single contribution based claim because it gave you more money. (i.e. his private pensions would be treated with 'a disregard of first £85 and the half of any remainder deducted as income per week..'). if this was the case then there would be no back pay.

[nukecad]

Now reading that we're confused but we don't think we will get and back pay because of the top up payment.If that's the case we were one that was paid properly from the start.

Yes and no.

I would say from the above that you are probably not due any actual backpayment, but could be given the IR entitlement which means free prescriptions, dental treatment, etc.

They would have to work out what you should have been paid, and then the Transitional Protection that you have already received would be deducted from that.

I can't estimate the actual figures at the moment, but suspect that the £190.48 is higher than what you should have been paid anyway without TP.
(Unless you/your hubby qualifies for the SDP).
In which case you should contine to receive at least the £190.48 but with the added free healthcare, etc.

I'll try to remember take another look later.

[barbiejane]

Yes pmlindylou backpay from IB to ESA

[barbiejane]

Hubby was on DLA higher rate for both components and in 2013 I think his pension was roughly £400pm.
He is now retired.
Thanks for all your help and as I have said previously we don't think we will qualify for any back money but I wish everyone good luck and hope they get what they are owed..

[DaPa]

There is a formula for reducing this 'Notional Capital' over time, but I'm not at home and can't give it off the top of my head.

Have you had time to refer to this?

[nukecad]

Have you had time to refer to this?

Are you sitting comfortably?

The whole subject is very complicated, as usual.

Notional Capital, deprivation and the "Diminishing" rule are all covered in DMG Volume 9 Chapter 52.
https://assets.publishing.service.go...30/dmgch52.pdf

There is too much to post here so I've only quoted extracts, have a read of that link for the rest.

Start at 52795 for an explanation of what "Notional Capital" is.

52795 The law says people are treated as having capital they do not have if
1. they deprive themselves of actual capital to get benefit or more benefit or
2. {continues}

52796 The capital people are treated as having is called notional capital.

Then go to 52805 onwards for what "Deprivation of Capital" is.

52840 is especially interesting here as you were unaware that you would even be getting any IR ESA payment. So as you did not know then you have not deprived yourself of capital, so there is no Notional capital to consider.

52840 Claimants or partners have not deprived themselves of capital for the purpose of getting benefit or more benefit if they did not know that the capital they have deprived themselves of would affect the amount of benefit they could get.

So that should cover it, but to go the whole hog -

You'll find at 52882 how they work out any 'notional capital'.

Starting at 52900 is the section on the "Diminishing notional capital rule".
To get to the nub of it:

52915 The amount of the reduction is the extra benefit claimants would get if they are not treated as having capital because of deprivation.

and the example at 52917:

Example
On 5 March Mohammed makes a claim for ESA. He is single and has no income or capital but the DM decides he is treated as having capital of £7,150 because of deprivation. The DM therefore decides that Mohammed is entitled to ESA(IR) of £51.20 a week. Mohammed would get £56.20 a week if he had not been treated as having capital because of deprivation. The DM also decides that the reduction in Mohammed’s notional capital is £5 a week.

In other words the extra benefit you would have got, if not judged to have deprived yourself, is what is used to reduce the notional capital until it has gone - at which point it then starts to be paid to you.

This "Diminishing notional capital rule" is not just a DWP rule - it is set out in law.
The applicable legislation is ESA regulations 2008 (as revised), Reg 116.
You can download the latest revision here.
http://www.legislation.gov.uk/uksi/2..._310818_en.pdf

[DaPa]

Are you sitting comfortably?

The whole subject is very complicated, as usual.[/url]

Interesting read, and thanks for that.

How long a period between granting me IR top up ( I missed this section) and my level of savings becoming in under the £6,000 limit is consider NOT Deprivation of Capital? I would think that the savings do go down over a period of time.

The Back Pay that was granted, how long is that on record as and NOT considered capital?

[nukecad]

The Back Pay that was granted, how long is that on record as and NOT considered capital?

That's simple - For as long as you are claiming ESA (or UC Limited Capability once you have been migrated).

That's because it was an 'Official Error'.
It was judged to be official error as part of the court case to get backdating before 2014, (some would say that was more important than the actual money).

I do recommend that in cases like yours, where you already had savings, that you open a new account and put the backpayment in there.
You can then leave it alone while reducing your other savings, and there will be no confusion about which is which because they are in seperate accounts.

How long a period between granting me IR top up ( I missed this section) and my level of savings becoming in under the £6,000 limit is consider NOT Deprivation of Capital? I would think that the savings do go down over a period of time.

That's a more interesting question, because it's not set out as a hard and fast 'rule'.
There are just too many possible circumstances to set rules that would cover everything that could reduce savings.

So it's down to the Decision makers discretion of what is 'reasonable' in each particular instance, with reference to the rules on Deprivation.

Obviously if you stay within that "Diminishing notional capital rule" but applied to your actual capital/savings then you will be well in the clear.
So if you only paid yourself from savings what IR benefits would be if you didn't have savings then there could be no argument.

But you can do more than that. (Because you weren't 'trying it on' in the first place by depriving yourself of the capital).

For instance, I would consider it reasonable if you used your savings to top up your IR benefit payments to the average wage for your area, or to the wage you were earning before you became too ill to work.
(You could leave any non-IR benefits out of that, for instance PIP is supposed to be extra and could be paid on top of your wages).

Of course I'm not a DM, but they would struggle to argue that that was unreasonable.
The whole idea is that if you have savings then you should use them to live off instead of claiming benefits, so using them to give yourself an average wage would be reasonable in most peoples view.

You can also spend it on things that are 'reasonable' - it's best to get their agreement before purchasing anything major.

eg. If your current car is knackered it would be reasonable to replace it with one of the same class; it would not be reasonable to replace a Honda with a new Ferrari or Rolls.
It would not be reasonable to give away a fairly new car to you child/sibling/friend and buy yourself a new one. (That could come under deliberate deprivation again).
You could use savings to pay for a 'reasonable' holiday, but a months luxury world cruise would probably not be considered reasonable.
Using it to pay bills is reasonable, using it to pay off loans (eg. a Mortgage) early is not. (Loans can only be paid off at their regular payment rate, or if they become immediately payable due to a court order or the like).

Again as a guide use that link above and 52805 onwards, if what you are spending would not be considered Deprivation of Capital then you should be OK.

One thing to note is that you can use the ESA backpayment to do whatever you like, it's disregarded and so does not come under Deprivation rules.
Another reason for keeping it in a seperate account, so you could easily show that any of it spent is disregarded anyway.