The Department for Work and Pensions (DWP) has recently retracted its decision not to award backdated premiums of income-related Employment and Support Allowance (ESA) stretching back to 2011.
Thousands of claimants who were transferred from the older incapacity benefit to ESA during the period 2011 – 2014 were not reassessed for income based benefit (the version of ESA which is means-tested). This meant that any premiums they may have been entitled to if they were in receipt of Disability Living Allowance or placed in the ‘support’ group were never paid within their claim. It was estimated that around 70,000 claimants were underpaid benefit totalling £350 million.
The DWP was heavily criticised by the National Audit Office for ‘failing to get a grip’ on the situation but insisted that it was only going to backdate ESA payments from 21 October 2014. This was on the basis that it was the date that the upper tribunal first ruled that contribution-based and income-based ESA are a single benefit and consequently the DWP has a duty to assess claimants for eligibility to both types of ESA when a claim is made.
A judicial review issued by Child Poverty Action Group on 29 March 2018 sought to extend the backdate allowable to 2011 when the migration first began. On 18 July 2018 the Secretary of State wrote to the upper tribunal dealing with the case of R(Smith) v SSWP JR/1249/18 (concerning a claimant whose underpayments dated back to 14 September 2012) to advise that she was happy to accept the argument of ‘official error’ in the case. Consequently on 10 August 2018, the upper tribunal issued a consent order in which it granted permission for the judicial review and allowed the claim, so paving the way for others affected to receive their full arrears backdate. This adds another £150 million to the benefit arrears total and the DWP has stated that it will contact claimants in order to award them the monies due.