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ESA capital and ILF
- Edi
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10 years 2 months ago #130691 by Edi
ESA capital and ILF was created by Edi
I am shortly taking my son's refusal of ESA income based to a tribunal. He was refused because it is alleged he has too much capital, when in fact this amount is a direct payment from local council and from independent living fund, together with his own DLA contribution, for his care fees. He receives 24/7 support because of his profound disabilities. We can not use this cash for anything other than care and have written agreements showing this . Has anyone ever come across this situation before? I would be grateful for any pointers to any case law on this matter.
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- Gordon
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10 years 2 months ago #130703 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic ESA capital and ILF
Edi
I am really surprised that you are having to challenge this Decision!
I can't for definite state that payments from the Independent Living Foundation are covered but I would expect them to be, but Direct Payments certainly are. See The Decision Maker's Guide Chapter 51. paragraph 51312.
www.gov.uk/government/uploads/system/upl...e/402050/dmgch51.pdf
Gordon
I am really surprised that you are having to challenge this Decision!
I can't for definite state that payments from the Independent Living Foundation are covered but I would expect them to be, but Direct Payments certainly are. See The Decision Maker's Guide Chapter 51. paragraph 51312.
www.gov.uk/government/uploads/system/upl...e/402050/dmgch51.pdf
Gordon
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- Edi
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10 years 2 months ago #130722 by Edi
Replied by Edi on topic ESA capital and ILF
Thanks for reply. Our social worker gave us a letter stating precisely that re direct payments . I kinda thought I may have had a problem re capital and got our welfare rights officer to help me complete the application form last April. She quoted the precise rules re capital at them but they still came back declaring it as his capital. Today I got a copy of a supplementary submission from DWP which quotes DMG 51341 ESA regs Schedule 8&9, and DMG 290992. following decision in R(SB)53/83
Then on the ILF money, R(IS) 3/93 when unspent money metamorphes into capital at the end of the 4 week period it was paid for.
Then on the ILF money, R(IS) 3/93 when unspent money metamorphes into capital at the end of the 4 week period it was paid for.
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- Gordon
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10 years 2 months ago - 10 years 2 months ago #130727 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic ESA capital and ILF
Edi
Looking at the entry in the Decision Makers Guide that you quoted, this covers payments from the ILF.
Looking at the two sets of paragraphs, Direct Payments from the LA are not counted as income and any residual amounts are not treated as capital, however, this is not the case for the ILF, payments are disregarded as income but any money not spent within the normal payment period is then counted as capital.
The normal rules for Direct Payments are that the claimant has a separate account that is solely used for these payments, so it should be easy to separate off this money from your sons own money and the ILF payments. However, if the total of these latter amounts exceeds £16,000 then I am afraid that the DWP are entitled to refuse entitlement to ESA(IR).
Gordon
Looking at the entry in the Decision Makers Guide that you quoted, this covers payments from the ILF.
Looking at the two sets of paragraphs, Direct Payments from the LA are not counted as income and any residual amounts are not treated as capital, however, this is not the case for the ILF, payments are disregarded as income but any money not spent within the normal payment period is then counted as capital.
The normal rules for Direct Payments are that the claimant has a separate account that is solely used for these payments, so it should be easy to separate off this money from your sons own money and the ILF payments. However, if the total of these latter amounts exceeds £16,000 then I am afraid that the DWP are entitled to refuse entitlement to ESA(IR).
Gordon
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Last edit: 10 years 2 months ago by Gordon.
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- Edi
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10 years 2 months ago #130729 by Edi
Replied by Edi on topic ESA capital and ILF
Thanks Gordon. We do have a separate account which only has these payments going into it. The ILF money is not easily distinguishable, so I shall have to do some calculations here.
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- Gordon
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10 years 2 months ago #130730 by Gordon
One thing to do is to have the ILF payments moved to another account, I'm surprised the LA has not mentioned this, because either you, your son, or the LA is supposed to be auditing the Direct Payments account on a regular basis.
Gordon
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Replied by Gordon on topic ESA capital and ILF
Edi wrote: Thanks Gordon. We do have a separate account which only has these payments going into it. The ILF money is not easily distinguishable, so I shall have to do some calculations here.
One thing to do is to have the ILF payments moved to another account, I'm surprised the LA has not mentioned this, because either you, your son, or the LA is supposed to be auditing the Direct Payments account on a regular basis.
Gordon
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