Department for Work and Pensions

5. Mr T tells us the DWP considered his appeals and concerns about its handling of his ESA award. He says the DWP has now correctly awarded him ESA IR and backdated it.

6. He complains the DWP did not provide enough compensation for its delay in awarding his ESA IR.

7. Mr T also complains the DWP told him it would automatically move him to UC, but this never happened.

8. Mr T tells us he is frustrated by the level of compensation the DWP awarded as he does not see it is enough to put right his upset and distress. He also said he received fines from his dentist for treatment he thought was free, and would have been, had he been on ESA IR. He said this caused additional and unnecessary distress.

9. He explains the DWP’s poor communication around his UC eligibility left him significantly worse off and further contributed to a decline in his mental health. He adds that he now has a county court judgement (CCJ) against his name which could have been avoided had the DWP moved him to UC.

10. Mr T wants the DWP to pay him further financial remedy.

11. The DWP awarded Mr T contributions-based ESA (ESA C) from 15 January 2015.

12. Mr T called the DWP on 14 May 2018 to query what benefit he was on after he was fined by an NHS dentist for incorrectly claiming he received free dentalcare. The DWP confirmed he was in receipt of ESA C only.

13. Mr T appears to have contacted the DWP again on 16 August 2018 to request an ESA3 form which would allow him to claim ESA IR. The DWP subsequently awarded ESA IR from 16 August 2018.

14. Mr T called the DWP on 12 December 2018 to ask it to backdate his ESA IR claim to 15 January 2015 (when Mr T was first awarded ESA C).

15. The DWP decided on 19 December 2018 that Mr T’s claim had been backdated correctly, so decided to make no changes.

16. Mr T appealed to the court. The court wrote to the DWP on 10 April 2019 and asked it to consider further backdating Mr T’s claim.

17. The DWP considered the court’s decision, and after reconsidering his entitlement, decided on 19 May 2019 it would further backdate his ESA IR claim to April 2015. There is no evidence Mr T challenged this decision.

18. The DWP paid Mr T the ESA IR arrears in July 2019.

19. In May 2023, Mr T contacted the DWP and set out that while the DWP had now paid the ESA IR arrears, he now understood he could have claimed compensation for the impact of not being in receipt of ESA IR from the point he was entitled to it (April 2015).

20. Mr T also raised concerns about his migration to UC. He said he would be financially better off on UC and had been waiting since October 2017 (when UC became available in his area) for the DWP to move him to this benefit.

21. He said because it was the DWP’s responsibility to migrate him, it should migrate him to UC and backdate it to October 2017.

22. The DWP responded to Mr T and explained there was no evidence it had misinformed him about UC and it would migrate him, as per its national plan, by 2028.

23. It also decided to award Mr T £250. It said this sum was in recognition of the emotional impact caused by its handling of his ESA benefit.

Compensation

26. Mr T tells us the DWP should have awarded more than £250 in compensation. He said this sum is not enough to put right his upset and distress at being on ESA C for around three years when he should have been on ESA IR.

27. He also said he received fines from his dentist for treatment he thought was free, and would have been, had he been on ESA IR. He adds this exacerbated the financial pressure he was under and added to his upset and distress.

28. In considering Mr T’s complaint, we have discussed matters with the DWP and reviewed its consideration of Mr T’s compensation. The DWP sees the compensation it awarded is proportionate to put right the impact of what went wrong.

29. The DWP’s remedy guidance sets out how it should consider a claim for financial compensation. Part 47 says it should address injustice and hardship resulting from maladministration on a case-by-case basis.

30. Part 153 says poor service will impact upon the health of different people to different extents. It is, ‘the degree and duration of the impact that is normally more important.’

31. Part 158 says consolatory payments will usually range from £25 to £500, but it may award larger payments where appropriate.

32. Our remedy guidance says in determining what is an appropriate amount to recommend, we take into consideration financial amounts recommended or already paid by other organisations.

33. Our Principles of Good Administration say in their decision making, public bodies should take account of all relevant considerations, ignore irrelevant ones and balance the evidence appropriately.

34. To better understand whether the DWP’s compensation of £250 is in line with applicable guidance, we will first need to set out when Mr T first experienced the impact of upset and distress.

35. Mr T claims the delay in awarding him ESA IR meant he was financially worse off and this caused him to suffer upset and distress. Mr T said this upset and distress began in April 2015. This is when the DWP should have provided him with an ESA3 form (which would have allowed him to claim ESA IR) but did not do so.

36. It is important to note here that Mr T applied for ESA and was awarded ESA C in January 2015. We can see the Independent Case Examiner’s (ICE) investigation saw evidence Mr T received DWP paperwork in early February 2015 which confirmed he was in receipt of ESA C.

37. We are therefore persuaded the DWP correctly informed Mr T of what benefit it awarded him in early 2015.

38. The next significant contact is when Mr T called the DWP on 14 May 2018 to query what benefit he was receiving. The DWP confirmed he was in receipt of ESA C.

39. We understand Mr T said this call was prompted following a fine he received from the NHS for incorrectly claiming free dentalcare. He said this event is what made him aware that there were two different types of ESA.

40. We understand that had Mr T been on ESA IR, he may have qualified for free dentalcare but because he was on ESA C, he did not.

41. Mr T called the DWP again on 16 August 2018 to request an ESA3 form which would allow him to claim ESA IR. In our view, this is when the impact started. It was at this point Mr T realised ESA IR may be better for him and took action to apply for it.

42. Prior to 14 May 2018, Mr T was not aware of any impact to his finances or wellbeing as a result of being on ESA C as opposed to ESA IR. It was only from 14 May 2018 that we think this impact could have been realised.

43. We cannot see Mr T took any further action until 16 August 2018. As such, we think it is fair to say any upset and distress will have started from this date.

44. We recognise Mr T said the impact started from April 2015, but we cannot see he was aware of any potential entitlement to ESA IR at this time. We must also remember that the DWP have since paid him any ESA IR arrears from this date.

45. In reviewing whether the DWP’s compensation is in line with applicable guidance, a key factor will be for us to consider the length of time Mr T experienced upset and distress.

46. As we have set out above, we see Mr T experienced this upset and distress from 16 August 2018 (when Mr T took action to apply for ESA IR) to when the DWP paid the ESA IR arrears on 1 July 2019. This is a period of just over 10 months.

47. We carefully considered the DWP’s special payment decision. A DWP decision maker (DM) completed this document and recorded all the relevant information which informed their decision to award compensation.

48. In reviewing this document, we can see the DM set out a detailed history of Mr T’s benefits and any communication between him and the DWP. It also considered ‘what should have happened’ and the effect any gaps in service had upon Mr T.

49. It then ties this information together and considers what compensation it should award Mr T. The DM paid particular attention to Mr T’s claimed financial and emotional impact.

50. The DM considered Mr T’s claim he incurred a fine from an NHS dentist for claiming treatment he was not entitled to. The DWP said when completing a benefit declaration at the dental surgery it was Mr T’s responsibility to check what part of the benefit he was receiving and select the correct option.

51. The DM does not accept the DWP was liable for any fines Mr T received from the NHS dentist. The DM did accept, however, that the DWP could have handled his account better from the point at which he became aware he was not on ESA IR, and this would have had an emotional impact upon him.

52. We recognise Mr T is upset by the DWP’s decision not to award compensation for the fines he received. While we acknowledge Mr T’s position, we do not see the DWP’s view is unreasonable.

53. Mr T was seeking treatment which he knew could be chargeable. As such, it was up to him as the service user to know what benefit he was in receipt of and whether this entitled him to free dentalcare.

54. The DWP also noted Mr T did not supply it with any clinical medical evidence to support any further impact to his mental health beyond the upset and distress he describes.

55. Mr T has not told the DWP of any other impacts. As such, the DWP were only providing compensation for the emotional impact of upset and distress.

56. The DWP decided to award Mr T £250 in recognition that the level of service he received fell below the standard he had the right to expect.

57. The DWP had already put right its handling of Mr T’s benefits by paying him any ESA IR arrears it owed.

58. Our Office is therefore only considering whether the DWP correctly reached a decision to pay Mr T compensation for the upset and distress he experienced. As previously set out, we think Mr T experienced this upset and distress from 16 August 2018 to 1 July 2019.

59. Having carefully considered all the available evidence, we are satisfied the DWP’s offer of £250 is in line with its remedy guidance. We also think its decision-making is in line with our Principles.

60. This is because the DWP’s DM appears to have carefully taken into consideration Mr T’s history and his personal circumstances. The DM took this into consideration alongside what they understood had gone wrong with its service before deciding on a sum it would award.

61. The £250 the DWP awarded is broadly similar to the sum we are likely to have awarded had we considered financial remedy.

62. We are likely to have considered Mr T was at level two in our severity of injustice scale. This is because the period of impact is not so lengthy and we would reasonably expect any impact to diminish completely within the fullness of time.

63. Our severity of injustice scale consists of six levels. As the scale increases, so does the severity of the impact and the associated remedy. This scale allows us to more accurately assess impact and what remedy we think will put it right.

64. We have therefore decided to take no further action in this part of Mr T’s complaint. We recognise our decision is likely to come as a disappointment, but we hope we have clearly set out our thinking, and this provides him with some reassurance.

UC

65. Mr T tells us the DWP told him it would automatically move him to UC, but this never happened.

66. He said he would be financially better off if he was on UC and had been waiting since October 2017 for the DWP to migrate him to this benefit.

67. We can see Mr T raised this with the DWP on 17 May 2023 and it replied on 27 June. It said when UC became available in his area this was only for claimants making a new claim for an income related benefit.

68. It said migration for existing claims like his would only have happened if there was a change in circumstances which would have triggered a ‘natural migration’, this means a change in circumstances which meant Mr T had to then claim UC.

69. The DWP checked its records and could find no circumstances which would have triggered Mr T’s natural migration.

70. It explained it was staggering ‘managed’ migration to UC for existing claimants who were in receipt of ESA IR and other income related benefits. It expected to complete this migration by 2028.

71. Managed migration is where the DWP sends the benefit claimant a migration notice. This explains their benefits are ending and advises them to make a claim for UC by a specific deadline.

72. The DWP advised Mr T of the options available to him which may trigger natural migration to UC. It said this would result in him losing ESA IR and warned him to take advice before taking any action to ensure he would be financially better off on UC.

73. The DWP migration guidance sets out the key processes for ‘managed migration’. It says the DWP is selecting claimants for managed migration in stages. Those chosen will receive a migration notice to confirm the next steps.

74. The House of Commons migration report gives some wider context to the DWP’s plans to migrate claimants to UC. It provides additional information around the key aims which underpins the DWP’s migration guidance.

75. Our Principles say public bodies should aim to ensure that customers are clear about their entitlements, about what they can and cannot expect from the public body, and about their own responsibilities.

76. We can see Mr T feels he should have automatically been migrated to UC when it became available in his area in October 2017. He says the DWP should have advised him he would be better off on this benefit and moved him without delay.

77. He adds that the deadline for moving claimants over to UC has extended several times and is distressed he may have to wait longer for managed migration.

78. Having carefully considered the available information, we can find no indication the DWP has done anything wrong.

79. We recognise Mr T is distressed as he said he would be better off on UC but has not yet been migrated to this benefit. We acknowledge there have been delays in moving claimants over to UC nationally, and the DWP said it is working hard to move claimants over by managed migration.

80. While we appreciate Mr T is upset by these events we cannot see any indication of maladministration. The DWP is purposefully moving people over to UC in groups due to the complex undertaking of moving so many claimants to a new benefit at any one time.

81. We note the DWP has already informed Mr T he will eventually be automatically migrated to UC via managed migration. It has also informed him of the other routes available where he may be able to claim UC, outside of managed migration, should he wish to pursue them.

82. We therefore see the DWP’s explanation during the complaints process is in keeping with its guidance, and more broadly speaking, also reflects what is set out in the House of Commons migration report.

83. We have therefore decided to take no further action in Mr T’s complaint.

1. We have carefully considered Mr T’s complaint about the DWP. We appreciate this complaint is very important to him.

2. We are satisfied the DWP’s consideration of compensation is in line with applicable guidance and standards. We also think the sum is proportionate to put right the upset and distress caused by the DWP’s handling of Mr T’s Income Related Employment Support Allowance (ESA IR) benefit.

3. We cannot see any indication of maladministration in the DWP’s explanation concerning Mr T’s migration to Universal Credit (UC).

4. For this reason, we have decided to take no further action in Mr T’s complaint. We appreciate our decision will likely be disappointing. We hope our decision statement clearly sets out how we reached our decision.