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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33810
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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Please can this question be answered by Clare the UK

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Please can this question be answered by Clare the UK solicitor on the site.

I am currently under investigation by the DWP concerning my Employment and Support Allowance. I believe an official error has occurred and would like to confirm my understanding of the benefit with you to help with my response to the DWP.

The question raised by the DWP appears to focus on whether I am on income or contribution related ESA. I have savings over £6,000 so this issue is clearly important because if I am on income related ESA I would need to declare these savings whereas if I am on contribution based ESA there is no requirement to declare the savings.

When I applied for ESA, on page one of the application form it asks if you would like to apply for income related ESA. I ticked ‘no’ to this box because I wanted to apply for contribution based ESA only. I provided no supporting documents with my application (bank statements, details of income) because I was not applying for income based ESA and hence did not need to satisfy their income and savings means test.

I was granted the ESA, but it would appear at some stage I was awarded a combination of contribution ESA and a top of income based ESA. I am not sure if this was from the beginning of the ESA award or whether this was at some stage after the initial application. I don’t really think it matters when this income element was awarded, because I expressly stated on my application form that I did not want to apply for income related ESA or did not provide the necessary financial documents for a means test.

Does this understanding sound correct you - being that you can not receive an income based ESA benefit without 1) applying for this benefit (which I did not) and 2) providing the necessary supporting documents, such as banks statements, to satisfy the income and savings means test (which I never provided).

I would also note as well that it appears as though you can not simply be switched from a contribution based benefit to an income based benefit for ESA. This would require a form to be completed (the ESA 3 form) which would then request your financial supporting documents for the means test.

Submitted: 1 year ago.
Category: Family Law
Expert:  Jo C. replied 1 year ago.
I know she is offline today but I will send her a message about this if you are happy to wait for her.
She said she would be back tomorrow.
Customer: replied 1 year ago.

That would be great, I am happy to wait until tomorrow. Many thanks.

Expert:  Jo C. replied 1 year ago.
No problem. I will chase her.
Customer: replied 1 year ago.

Unless you think you would be able to answer the question?

Expert:  Jo C. replied 1 year ago.
It is more her area really.
I will chase her up for you.
Customer: replied 1 year ago.

Ok, thanks. Please pass this on to Clare tomorrow.

Customer: replied 1 year ago.
If Clare is available to answer my question today that would be great
Expert:  Clare replied 1 year ago.
Hi
Thank you for your question and for asking for me.
When was the application made?
Clare
Customer: replied 1 year ago.
Hi Clare, I made the application in March 2014.
Expert:  Clare replied 1 year ago.
Hi
Did the paperwork you received not make the position clear?
Clare
Customer: replied 1 year ago.

Hi Clare,

I didn't realise there was a problem until the DWP contacted me in July this year. I was surprised because I knew I had only applied for contribution based ESA (having ticket the box on the application form to not apply for income based ESA).

The letters are not particularly clear. The narrative of the letters just makes reference to the fact you have been given ESA. On the final page of the letters is a break down which says something to the effect of "your ESA is awarded based on your national insurance contributions plus an extra amount the government decides you need to live on". There is a phrase which says "income based" total.

Even so, I still do not believe it is possible to receive an income based benefit without first applying for it and secondly proving the financial information for the means test. I had no reason to expect to receive income based ESA in any form having expressly not applied for it on the application form. I feel like this is their mistake - I should never have been given an income based benefit for the mentioned reason - and they are trying to blame me for this official error.

Customer: replied 1 year ago.

I should also say, if after my initial application the DWP did not believe I qualified for contribution based ESA and wanted me to transition across to income based ESA in any form, I should have been sent an ESA 3 form to complete. I don't remember receiving this.

Even if they did send it, an income based benefit should not have been started until this ESA 3 form had been completed and returned with the financial information requested for the means test.

Expert:  Clare replied 1 year ago.
Hi
What level of ESA were you on
Clare
Customer: replied 1 year ago.

Hi Clare, I had my interview around July 2014 and was placed in the Support Group shortly after this.

Expert:  Clare replied 1 year ago.
Hi
So you were expecting payments to end this year in any event?
Clare
Customer: replied 1 year ago.

Hi Clare,

I expected to stay on the ESA for quite a long time because I was placed into the support group. My health conditions are on going.

I really just wanted to confirm that you can not be awarded income based ESA without first applying for it (the application form specifically asks if you want to apply for it) and also providing details of your financial affairs to satisfy the means test.

Expert:  Clare replied 1 year ago.
Hi
Certainly if you did not apply for income based ESA then you cannot be responsible for the fact that they processed the applictaion in that way.
However since the words "income based" do appear in the letter it could be argued that you shoudl have realised what had happened
However as you so rightly say these letters are not clear and you appear to have an excellent defence to any allegations of fraud.
However any overpayment will still be repayable
Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33810
Experience: I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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