Reply To: ESAir OP that is not being recovered by DWP – What income is used for underlying entitlement?


First of all I think this is actual (not so called underlying entitlement) because the cessation of a passporting benefit is of itself not sufficent to end the HB entitlement (CH3736/2006)

I take it that the overpayment is on account of the claimant no longer being entitled to the additional  (work related activity or support) component, but I am dubious about how the DWP determined the ESA award.

There are a number of scenarios where LCW can be redetermined ( incidentally the determination of LCW is not a decision but a building block in the outcome ESA decision.), and I think you need to find out more about which sceanario applies here

The usual way LCW is re- assessed is though the claimant being called in for a face to face assessment.  The receipt of the report will amount to new medical evidence which will provide the initial ground for any superseding decision, but does not determine the outcome.  The receipt of futher medical evidence only provides the threshold to enable re-assemnent of the award.  (CIB/1509/2004 ,DB v Secretary of State for Work and Pensions (IB)[2010] UKUT 209 (AAC) CIB/2734/2009 )

It is usual for decision makers to blindly follow the recommendation of the health care prefessional (HCP) and most of my work involves appealing such decisions.  What is not usual is for the DM to make the supersession retrospective.

Regulation 7(2)(c) of the Socaial Security and Child Support (Decisions and Appeals) Regulations provides that ESA supersessions which embody a LCW determination   can be effective from the date a change occurrs, but that change needs to be identified (different HCP's and decision makers may come to different conclusions on the same facts)

The fact that the purported overpayment is not being recovered suggests to me that there might not be any such overpayment because no change was actually identified, or alternatively that it is arguable that the HB overpayment should be classified as DWP official error because ESA continued to be paid through no fault of the claimant