Deduction of ESA Update.

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Deduction of ESA Update.

Post by Beachcomber on Tue Feb 03, 2015 7:23 pm

A South Wales IOD has been told by his force that they have sought to attain clarity from the Home Office on the legal status of Employment Support Allowance and related Incapacity Benefit deductions.

They can now advise that although there remains some uncertainty on the impact and timing of the legislative changes. The Home Office have confirmed that they intend to make the legislative changes on the treatment of Employment Support Allowance in 2015 and that these changes may be retrospective in nature.

In the event that the Police (Injury Benefit) Regulations, 2006 and/or the Social Security and Benefits Act 1992 (and any other relevant legislation or Home Office Guidance applicable thereto) is amended so that ESA is to be considered  a relevant benefit and therefore deductible. the force reserves its position to seek repayment of such sums through what they describe as 'appropriate means'.

On this basis, the force intend to stop making any deductions in respect of ESA at the earliest opportunity and given the scale of the change this will be with effect from 1st April 2015 Pension payroll.


Our correspondent points out however, no mention of reimbursement of any unlawfully deducted ESA  - how can you claim back something (retrospectively) that was not theirs to deduct / take in the first place!!!

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Re: Deduction of ESA Update.

Post by RedDog on Tue Feb 03, 2015 8:24 pm

Every time I hear the mention of 'these changes may be retrospective in nature" I feel like picking up the computer and lobbing it through the ******* window! What's up with these people???

If they want to claim this money back retrospectively I want/expect the Federation to fund a legal case against this. It is blatantly unfair and unjust!

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Re: Deduction of ESA Update.

Post by Adversity on Wed Feb 04, 2015 12:24 pm

So it looks like they have decided upon the ESA issue, wonder if they will actually address the issue of deducting it net, or will still continue to penalise our disabilities by effectively taxing our non taxable injury pension? Had we been not quite so disabled, or had managed to acquire our injuries after April 2001, we wouldn't have been entitled to ESA in the first place, it is an insult.

Looks like there is still no clarity on the fact that the old incapacity benefit was NOT, until the 2006 regs, a defined deductible benefit, as the legislation pre 2006 only covered invalidity benefit. Over £30,000 incapacity benefit they took of me, and that was taxed-so they owe me £36,000...I won't hold my breath on that being repaid to me either.

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Re: Deduction of ESA Update.

Post by P1 on Wed Feb 04, 2015 5:22 pm

Any attempt to make ESA deductible retrospectively would be unlawful.

Article 1 of protocol 1 ECHR provides "Every natural or legal person is entitled to peaceful enjoyment of his possessions".

This means laws made retrospectively to claim back something (money) which was not previously deductible is a breach of The European Convention On Human Rights - i.e. you have lost your right to peaceful enjoyment of your property.
I would expect the lawyers to have a field day.

Money is property (a possession) as is a pension.

The only get-out to the above Human Rights legislation applies to taxes and tax legislation. ESA and Police Injury Awards are not taxes.

I would also suggest that because ESA is not currently deductible from an Injury Award (it is not a scheduled deductible benefit as defined by Schedule 3 of the Regulations) and forces have not been deducting it (and The Home Office have confirmed in writing that ESA is not deductible), any future changes to make ESA deductible would be difficult. You have a legitimate expectation not to have this money deducted from your pension.

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Re: Deduction of ESA Update.

Post by Adversity on Wed Feb 04, 2015 9:29 pm

P1. Just to make you aware, you said “and forces have not been deducting it”, my force deducted ESA from me, even after I pointed out the home office guidance. I know other forces have done likewise.

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Re: Deduction of ESA Update.

Post by P1 on Thu Feb 05, 2015 1:10 pm

Adversity wrote:P1. Just to make you aware, you said “and forces have not been deducting it”, my force deducted ESA from me, even after I pointed out the home office guidance. I know other forces have done likewise.

Hello Adversity.

There's a draft letter on the NARPO website for retired officers to send to their former force, re; deduction of ESA.

Perhaps it would be of benefit to you to write to your former force (assuming you haven't already done so). You have nothing to lose.

The Home Office response to the question makes it clear that ESA is not deductible from an Injury Award (and in my opinion this would make it very difficult to suddenly make it deductible).

Another issue - let's assume a former officer has been claiming ESA for years and it has not been deducted from his/ her award. To suddenly say oops, sorry, we've changed the regulations and backdated them, you now owe us £15,000 (or whatever) would have serious implications for the pensioner.
I don't think that would wash with any court for the reasons previously mentioned.

Incapacity benefit was deductible from an Injury Award until the first day after retirement that was not deemed to be a day of incapacity for work - i.e. if there was a break in payment (even for 1 day) and the pensioner later resumed claiming this benefit, then it was NOT deductible. Schedule 3 of the Regulations refers but I'm sure you already know that.

I've found the NARPO website is pretty good for this kind of info, as is this website.

It is a minefield to say the least.











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Re: Deduction of ESA Update.

Post by Adversity on Thu Feb 05, 2015 9:30 pm

Hello PI, yes, I sent that letter to them, still didn't change their minds and they still deducted it! I was so pleased when my ESA WRAG ended after the 365 days, and I got my full injury pension untaxed. Unfortunately for me, 6 months after that, DWP decided to re-examine my paperwork and realised I should be in the support group, and ESA payments restarted.

Now I had had a 6 months break in payment, (DWP do not pay backpay in that instance), so I pointed out the incapacity benefit law about the a break in payment to the police, thinking now that this new ESA could be disregarded, but no. I had had a break in payment, but not a break in entitlement, even if that entitlement was £0.00. So they said they would be deducting it. However they said they “wouldn't start deducting it until they start deducting it” (their actual words!), as they had messed me about on something else that was going in. And so far they haven't deducted it, but I dread each payday, wondering whether they will deduct 4 or 5 months ESA in one go, leaving me with a negative pay check!

You made me chuckle saying I have nothing to lose, I was going to reply “just my sanity”, but then realised that went years ago!


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Narpo West Midlands Update on ESA Deductions

Post by Beachcomber on Thu Jul 16, 2015 7:49 pm

This is from the Narpo West Midlands web site:

http://www.narpowestmidlands.org/news/1059

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Re: Deduction of ESA Update.

Post by Adversity on Thu Jul 16, 2015 8:42 pm

Hello Beachcomber, thank you for that link.

Unfortunately my force, upon me sending them the home office guidance letter about ESA being unlawfully deducted from my pension stated that 'this was mere guidance and they would not act upon it', although to be fair I noted they later suddenly stopped deducting ESA, however they said this was as a 'favour' as I had been 'messed about with'. So I anticipate they will treat 'mere' NARPO negotiations in the same manner. Prior to them suddenly stopping deducting it, they had previously deducted a full year's worth of ESA from my non taxable injury pension, deducting it gross, and therefore, because ESA was taxed via your tax code, I therefore lost out on the ESA amount plus 20% tax.

I see there is another active thread about incapacity benefit pre 2006, when it was then made a deductible benefit in 2006, and Urtica stated that he was unaware of anyone who had it deducted from their injury pension 1995-2006. Well here we go again, I had it deducted gross from 2000-2006, and hence, as it was a taxable benefit, again I lost out on the amount deducted from my injury pension, PLUS 20%, as it was again taxed through my taxcode.

To be honest, I am in such a state of despair about the system, that I can currently barely speak about it, I used to post on the forum quite a bit about DWP benefits, but I seemed to be in the minority who had been stuffed, and could not face yet another person supportively saying 'claim it back' when my force were so stubborn. I also thought I was become a bit boring!

I am not in Narpo, I couldn't see the attraction of being given discounts on holidays and having social gatherings, when I am unable to leave my house or engage with anyone, especially not 'police', as I see them as more of an enemy than the man who tried to kill me which resulted in my retirement. In any case, unless the fire service make a case of unlawfully deduction, if it affects them, I can not see Narpo doing much!




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Re: Deduction of ESA Update.

Post by officerdribble on Sun Jul 19, 2015 9:44 pm

Adversity wrote:Hello Beachcomber, thank you for that link.

Unfortunately my force, upon me sending them the home office guidance letter about ESA being unlawfully deducted from my pension stated that 'this was mere guidance and they would not act upon it', although to be fair I noted they later suddenly stopped deducting ESA, however they said this was as a 'favour' as I had been 'messed about with'. So I anticipate they will treat 'mere' NARPO negotiations in the same manner.  Prior to them suddenly stopping deducting it, they had previously deducted a full year's worth of ESA from my non taxable injury pension, deducting it gross, and therefore, because ESA was taxed via your tax code, I therefore lost out on the ESA amount plus 20% tax.

I see there is another active thread about incapacity benefit pre 2006, when it was then made a deductible benefit in 2006, and Urtica stated that he was unaware of anyone who had it deducted from their injury pension 1995-2006. Well here we go again, I had it deducted gross from 2000-2006, and hence, as it was a taxable benefit, again I lost out on the amount deducted from my injury pension, PLUS 20%, as it was again taxed through my taxcode.

To be honest, I am in such a state of despair about the system, that I can currently barely speak about it, I used to post on the forum quite a bit about DWP benefits, but I seemed to be in the minority who had been stuffed,  and could not face yet another person supportively saying 'claim it back' when my force were so stubborn. I also thought I was become a bit boring!

I am not in Narpo, I couldn't see the attraction of being given discounts on holidays and having social gatherings, when I am unable to leave my house or engage with anyone, especially not 'police', as I see them as more of an enemy than the man who tried to kill me which resulted in my retirement.  In any case, unless the fire service make a case of unlawfully deduction,  if it affects them, I can not see Narpo doing much!




Same position as you. BUT...I am supposedly being paid back the whole 365 days of ESA deductions come 1st of August. Trouble is...do I spend it or wait a few years in case they change their minds? Perhaps I'll just buy a funeral plan. scratch

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Re: Deduction of ESA Update.

Post by Adversity on Fri Oct 16, 2015 4:40 pm

This may help others who, like me, have a stubborn force who are STILL “ waiting for guidance” before refunding me the ESA they illegally deducted.

Taken from Narpo West Midlands site https://www.narpowestmidlands.org/news/1059
(nothing on the national site to my knowledge)

It states “ Published: 11 April 2015, Over a number of months, your NARPO Branch officials have been negotiating with the Force, firstly to cease deduction of Employment and Support Allowance from Injury Awards pensions, and secondly, to seek repayment of deductions already made. The Director of Resources previously agreed to the cessation of deductions with effect from 1st September 2014, but has now agreed to a programme of refunds adjusted for interest lost. The DoR has highlighted that members affected, may have to provide additional information and he is unable to provide a definite timeline for the process. In addition, the DoR reminds members that the Home Office has so far declined to rule out retrospective deductions if the Government changes the rules in the future, albeit NARPO believes this extremely unlikely. The Director of Resources will be corresponding directly with members affected but if further assistance is required, please contact your own Branch Secretary…...”

Looks like they are paying interest on it as well.


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Home Office Letter June 2106.

Post by Admin on Thu Nov 03, 2016 8:55 am

This letter from the HO to Narpo confirms that future arrangements to deduct ESA will not be retrospective.:

ESA Letter to Narpo.

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Re: Deduction of ESA Update.

Post by White Horse on Thu Nov 03, 2016 6:00 pm

I'm pleased about that, but as for those put in the WRAG section, they're probably getting nothing after 12 months.

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Re: Deduction of ESA Update.

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