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  1. #1
    Cocolisboa's Avatar

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    Default Occupational pension and ESA? legislation is contradictory

    Hi everyone,
    I am at my wits end with stress due to the dwp. I am only 30, last year I was terminated from employment on grounds of ill health (as illness is progressively getting worse). I was then granted ill health retirement (9 months later) and received an occupational pension with lump sum via scottish public pensions agency (public occupational pension scheme). I phoned DWP about this as I was on income related ESA. I was initially told that my pension wouldn't be taken into account. Then I received a letter about a month later saying it would.
    The contrasting part of this is that my housing benefit is not affected and the housing benefit office even wrote to me saying that the type of pension and lump sum I received should be disregarded. I found this all very odd.

    Anyway, ESA/DWP treated my lump sum as capital (it is less than £16000) and my monthly pension as income. Therefore my ESA was cut. I was fine with this as I am getting my pension etc and I just went along with this. I never received any form of guidance from the DWP about what I can and can't do with my lump sum. Anyway, the first thing I sorted out was my £8000 of debt that I had accrued after going through three years of hell of being ill and having to go part-time.

    So, essentially my capital fell below the threshold. I notified the DWP, showed them all my statements etc and was very open about where the money had gone. I received a letter this week accusing me of deprivation of capital. Basically spending my lump sum deliberately to receive more ESA. I was absolutely flabbergasted. I am ill 90% of the time, I have always been an honest, hard working person. There is absolutely NO way I had any intention of trying to get more benefit from ESA. I was stunned. They also said that I did not need to pay my debt off as the interest payments weren't THAT high. As I said I received NO guidance on what I could spend my money on and it is not as if I have gone out and sipped champagne and bought gold rings lol!!

    After querying this with a few family members/friends the first thing they told me to do was check legislation. I checked the legislation online under ESA regulations 2013 and to my amazement under Chapter 52 – Capital – Page 78 It states Occupational pensions The law 52409 The value of the right to receive an occupational pension is disregarded indefinitely1 .

    Also, (3) A claimant who has attained the 4 qualifying age for state pension credit is to be treated as possessing– (a) the amount of any income from an occupational pension scheme, a personal pension scheme or the Board of the Pension Protection Fund–
    - I have NOT reached state pension age therefore this does not apply to me.

    Payments by way of pension 51 - "there are to be disregarded— (a) any payments from a personal pension scheme, an occupational pension scheme or a public service pension scheme which are payable to the claimant and which arose in accordance with the terms of such a scheme on the death of a person who was a member of the scheme in question; and"

    However, in the DWP decision maker's guidance it states that occupational pensions should be treated as income but it does not state what types of occupational pension. Then there is a contradictory statement in the DM guidance - Chapter 52 – Capital – Page 78 Occupational pensions The law 52409 The value of the right to receive an occupational pension is disregarded indefinitely1 . This is a complete contradiction???

    It also states the same about capital under regulation 28 - that an occupational pension should be disregarded.
    There is also legislation about the age of the person and anyone under the age of pensionable age are under different circumstances and basically shouldn't be treated as having extra income/capital.

    Please could someone assist me on this? Or clarify this for me? As I honestly feel that this is "too good to be true" but I am honestly shocked at the way the DWP have treated me. I have applied for a mandatory reconsideration on the decision as they are now treating me as having a notion of capital. However, according to the legislation my lump sum and pension should never have been treated as capital.

    Any info would be great. Thanks in advance x

  2. #2
    Kati's Avatar

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    Default Re: Occupational pension and ESA? legislation is contradictory

    tagging @enaid ... hopefully she will be able to help xx
    Debt is like any other trap, easy enough to get into, but hard enough to get out of.

    It doesn't matter where your journey begins, so long as you begin it...

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  3. #3
    Cocolisboa's Avatar

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    Default Re: Occupational pension and ESA? legislation is contradictory

    Thanks Kati x

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    Default Re: Occupational pension and ESA? legislation is contradictory

    Quote Originally Posted by Cocolisboa View Post
    Thanks Kati x
    just sit tight for now ... you'll get help soon xx
    Debt is like any other trap, easy enough to get into, but hard enough to get out of.

    It doesn't matter where your journey begins, so long as you begin it...

    recte agens confido

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    Any advice I provide is given without liability, if you are unsure please seek professional legal guidance.

    I can be emailed if you need my help loading pictures/documents to your thread. My email address is [email protected]
    But please include a link to your thread so I know who you are.

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  5. #5
    enaid's Avatar

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    Default Re: Occupational pension and ESA? legislation is contradictory

    I am afraid I can't help with this as I cant even find the info you gave in the esa 2013 regs.
    As far as I am aware any pension will be counted on income based benefits £ for £
    On contribution based anyhting over £85 from your pension is halved and taken into account.
    The deprivation rules also applies to pension pots.
    Sorry maybe give Welfare Rights a ring they may help.


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  6. #6
    Cocolisboa's Avatar

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    Default Re: Occupational pension and ESA? legislation is contradictory

    Hi Enaid,

    Sorry I was a bit flippant with my copying and pasting lol.

    This is the info, in Employment and Support Regs on legislation.gov.

    Notional income – deprivation and income on application106.—(1) A claimant is to be treated as possessing income of which the claimant has deprivedhimself or herself for the purpose of securing entitlement to an employment and support allowanceor increasing the amount of that allowance, or for the purpose of securing entitlement to, orincreasing the amount of, income support or a jobseeker’s allowance.

    (2) Except in the case of—(a) Sections 95 and 98 and Schedule 9 were amended by the Nationality, Immigration and Asylum Act 2002 (c. 41), sections44(1) and (6), 45(4)(a) and (b) and 50(1) and (2).(b) 1973 c. 50. 66(a) a discretionary trust;(b) a trust derived from a payment made in consequence of a personal injury;(c) an employment and support allowance;(d) a jobseeker’s allowance;(e) working tax credit;(f) child tax credit;(g) a personal pension scheme, occupational pension scheme or a payment made by theBoard of the Pension Protection Fund where the claimant is aged under 60;
    ALSO
    (3) A claimant who has attained the age of 60 is to be treated as possessing—(a) the amount of any income from an occupational pension scheme, a personal pensionscheme or the Board of the Pension Protection Fund— ** I have not attained the age of 60**

    AN

    Chapter 3 Employed Earners
    95.—(1) Subject to paragraphs (3) and (4), “earnings” means, in the case of employment as anemployed earner, any remuneration or profit derived from that employment and includes—
    (2) “Earnings” are not to include—
    (d) any occupational pension;

    This is in the decision makers DWP guidance notes -
    Chapter 52 – Capital – Page 78 Occupational pensions The law 52409 - The value of the right to receive an occupational pension is disregarded indefinitely1 .
    Which under legislation is -
    Schedule 9
    Capital to be disregarded
    Number 28 -
    28. The value of the right to receive an occupational or personal pension

    What are your thoughts on this? It seems that the decision maker's guidance notes are giving proper reference to the actual legislation for ESA?

  7. #7
    enaid's Avatar

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    Default Re: Occupational pension and ESA? legislation is contradictory

    Ok have found a much simpler explanation of those facts.
    http://www.ageuk.org.uk/brandpartner...owance_fcs.pdf

    My understanding is that as said here
     the value of a personal pension fund and the value of the right to receive aworkplace or personal pension.

    I may be wrong but to me that means the VALUE (what it is worth) is not counted as capital, once you have cashed this in or draw the pension than it will be counted.

    as with this
    the surrender value of any annuity or life insurance policies (although, if apolicy is cashed in, the money you receive is normally counted as part ofyour capital)

    Also on there it explains the deprevation aspect

    5.6 Notional capitalIf you deprive yourself of capital in order to qualify for benefit or increase theamount of benefit you get, the Department for Work and Pensions (DWP) cantreat you as still having that capital – this is known as notional capital. Thismight happen if you give money away to members of your family, buyexpensive items or pay off a debt early in order to qualify for a benefit. It canalso happen if you choose not to apply for capital which you could get if youapplied for it. Seek independent advice if you are told that you are going to betreated as having notional capital.


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    https://www.carersuk.org/

  8. #8
    Cocolisboa's Avatar

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    Default Re: Occupational pension and ESA? legislation is contradictory

    Many thanks for this Enaid. It definitely seems like a difficult one/grey area.

    A few people have said seek independant advice but do you know where the advocacy places exist? I am in Scotland. I have already contacted a legal aid solicitor and also a welfare advocacy service to see what their thoughts are on this.

    I am a very honest person and have never been accused of anything so vile in my life! If I had known that I couldn't pay my debt off etc I simply wouldn't have done it and just kept up the monthly payments. I also had no idea I was receiving a lump sum etc. It was a big shock to me and happened about 9 months after being assessed by the nhs pension place.

    I honestly feel the stress of this is going to end up giving me a heart attack. They will never stop the harassment of disabled people.

  9. #9
    enaid's Avatar

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    Default Re: Occupational pension and ESA? legislation is contradictory

    What advice did you get from the welfare advocacy service?

    I know you will be feeling totally sick with this situation, but please try and not stress, no comfort but the robotic way they deal with people is probably the only way they can do the job.

    Don't know where in Scotland you are, but this is the Welfare Rights site Glasgow https://www.glasgow.gov.uk/index.aspx?articleid=17873 there is a link on there to find your local office.

    Many have come unstuck with the'new' benefit system even my OH was fined because he didn't pay for his dental treatment and should have, total mix up but all they tell you is it is up to you to find the info out regarding your benefits.
    You are far from being alone in situations like this, it is imho only the hard core who can manipulate the system to their benefit and win, the honest are tried and tested and sometimes with very severe consequences.
    You will have another hurdle to cross in the future too when you are transferred to Universal Credit.
    So if I were you I would get a total benefit check (welfare rights ) should help with thta as you will have to give lots of personal info.

    You can do a rough estimate on here http://www.entitledto.co.uk/benefits...startcalc.aspx

    I wish you well and good luck and if you do find anyhting that can help others in this situation please let us know x


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  10. #10
    Cocolisboa's Avatar

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    Default Re: Occupational pension and ESA? legislation is contradictory

    Gosh that is absolutely awful! They will always blame the little man won't they.

    You are right, I dread to think what will happen when UC comes about. Many thanks for your help and I will keep you posted with what happens.

    Many Thanks.

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