Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

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  1. #1
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    Default ESA Upper tier tribunal appeal

    It's me again!

    I need a little direction on something Ive just discovered from the ME site. Someone over there did a FOI submission to ATOS who confirmed that 'neurological conditions' should be assessed during a WCA by a doctor and NOT HCP or nurse (health care practitioner). I have epilepsy and was assessed by a HCP. This is obviously wrong according to DWP/ATOS's own rules. Is this an error in law and can I appeal to the upper tier tribunal?

    Moreover are you still paid the assessment rate during the appeal to the UTT or does the assessment rate end following the first appeal?

    Surely if Ive been assessed by the wrong person then the initial WCA verdict is absolutely wrong and void.

    Can I demand that ATOS do the WCA again using a doctor rather than a useless nurse who knows nothing about epilepsy?

    If ATOS have failed to conform to their and DWP rules then surely the WCA is void?

    Any ideas?

    Thanks

    SD


  2. #2
    Basic Account Holder stalin's dead Novitiate

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    Default Re: ESA Upper tier tribunal appeal

    'The HCP then rattled through my ESA50 at some speed. My reason for being incapable for any work is due to depressive illness but in the interests of completing the ESA50 truthfully I listed a few more minor ailments. As soon as he reached the trigger finger information he seized upon it and said "Ah, you suffer from trigger finger?" I explained that I did have TF and that it affects me occasionally. He replied that "trigger finger is a neurological condition, and needs to be assessed by a qualified doctor, so a "nurse-to-doctor-handover would be required" The HCP was a nurse. This was the stated reason for the premature termination of the assessment, but the real reason was my note-taking, because he seized on the trigger finger issue as an excuse like it was a Get-Out-Of-Jail-Free card'.

    I found the above on CAGicon @ http://www.consumeractiongroup.co.uk...ead.php?261162 (dated May 2010)

    even an ATOS rep confirms what i suspected

    how does leave me and the validity of my WCA decision?

    thanks


  3. #3
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    Default Re: ESA Upper tier tribunal appeal

    If you had known this before the tribunal you could have insisted on another medical. But the Tribunal panel does have a doctor on it and they reassess your condition at the tribunal. The only way to legitimately challenge would be if the neurological decision at the atos assessment had been partially based on a physical assessment, and then the atos report was relied uopn at the tribunal. This is because a physical exam cannot be undertaken at a tribunal. But without that it would be a serious long shot. It would depend very much on the wording on the SOR really, and I still think you would likely be told you were assessed by a doctor at the tribunal and that's what the decision of the tribunal is based on.

    When they say error of law, it means an error of law made by the tribunal, not by anybody else like atos. It would be an error of law, for instance if you presented evidence at appeal that you had been inadequately assessed and then the tribunal did not address that. In reality the questionning you get from a tribunal is more detailed than an atos assessment.

    No you don't get paid any esa as part of appealing to an upper tribunal - you have to reclaim as you are doing.

    Best to wait for the SOR and take it from there.


  4. #4
    Basic Account Holder stalin's dead Novitiate

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    Default Re: ESA Upper tier tribunal appeal

    lm

    thanks for that mate

    appreciated

    SD


  5. #5
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    Default Re: ESA Upper tier tribunal appeal

    Can anyone confirm the following:

    I failed a first WCA for epilepsy, appealed and lost
    While awaiting the appeal date for the above I was brought in for another WCA(the GP in his wisdom put depression as well as epilepsy on my sick note) because of a new condition of depression (epilepsy and depression are common bedfellows). I filled in another ESA50 and then went for the WCA but i was never informed of the outcome of this second WCA and assumed it was an extension of my epilepsy appeal.

    Can I appeal the second failed WCA for depression?
    If not what are my options?

    Im just totally confused now about the 6 month ruling



    thanks

    sd


  6. #6
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    Default Re: ESA Upper tier tribunal appeal

    Basically you can't have it both ways, either:

    The decision regarding the second WCA is void because you failed the appeal, the 6 month rule applies, and as its been 6 months since the last actual WCA decision, you make a new claim. Or,

    You get a decision from the second WCA, this starts the 6 month waiting period off, but as its an actual decision you can appeal and receive ESA while appealling.

    I thought the DWP had told you that you could make a new claim and that the 6 month rule applies - this really is your best option as it gives you another run at the WCA, and we can help you get straight the descriptors you fulfill and how to tackle the assessment.


  7. #7
    Basic Account Holder stalin's dead Novitiate

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    Default Re: ESA Upper tier tribunal appeal

    Quote Originally Posted by leemack View Post
    Basically you can't have it both ways, either:

    The decision regarding the second WCA is void because you failed the appeal, the 6 month rule applies, and as its been 6 months since the last actual WCA decision, you make a new claim. Or,

    You get a decision from the second WCA, this starts the 6 month waiting period off, but as its an actual decision you can appeal and receive ESA while appealling.

    I thought the DWP had told you that you could make a new claim and that the 6 month rule applies - this really is your best option as it gives you another run at the WCA, and we can help you get straight the descriptors you fulfill and how to tackle the assessment.

    -

    I spoke to the DWP this morning and they're now confused as to how i should move forward. Ive rec'd the new ESA50 following my failed appeal on WCA1 but like you said i failed the WCA2 but was never informed of this by letter. The DWP can't understand why I was never informed of the failed WCA2 so they're coming back to me this afternoon to clarify where I stand.

    I have asked them if I could appeal the WCA2 decision but since I was never told of it then this is something they will clarify

    The important thing is I am in receipt of a meagre income just to buy food etc.

    The timeline is this

    WCA1 (epilepsy) failed Aug 2010. Appealled and lost appeal 10 days ago
    WCA2 (depression and therefore a new condition) failed end Dec 2010 but was never informed of outcome

    From what date is the 6 month rule triggered?! Bloody confusing especially for an epileptic!!

    So will the DWP let me appeal the WCA2 and stay on assessment rate or
    Reapply for new ESA claim based on epilepsy/depression?

    I think you're right that I should make a new claim but will I get paid ? I mean, its ok making a claim but will the DWP pay the claim!!


    Ive taken up for too much of your time mate and its appreciated

    many thanks

    SD


  8. #8
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    Default Re: ESA Upper tier tribunal appeal

    SD, yes, you can't get a decision on the second WCA until after the appeal had finished - otherwise putting the decision in the system would have stopped your payments. The DWP guidance states that the decision can't be officially made if negative until after the appeal. However I looked through the DWP guidance and although it is specific about the action to take if you pass the second WCA, its not all that specific about failing except to say the decision is deferred until post appeal.

    Either way, you will get paid, either as a new claim or because you appeal. But I completely understand, the delay is not good for finances. Can you get a crisis loan?


  9. #9
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    Default Re: ESA Upper tier tribunal appeal

    Quote Originally Posted by leemack View Post
    SD, yes, you can't get a decision on the second WCA until after the appeal had finished - otherwise putting the decision in the system would have stopped your payments. The DWP guidance states that the decision can't be officially made if negative until after the appeal. However I looked through the DWP guidance and although it is specific about the action to take if you pass the second WCA, its not all that specific about failing except to say the decision is deferred until post appeal.

    Either way, you will get paid, either as a new claim or because you appeal. But I completely understand, the delay is not good for finances. Can you get a crisis loan?
    -
    lm


    well I spoke to the DWP and they said i failed my second WCA (depression related to my epilepsy) and scored 9 points which made no sense what they gave me a big zero for my epilepsy on WCA1. I was shocked by that alone

    they did say that the appeal covered both WCA's which i said was nonsense because the tribunal could only by law take into consideration evidence from the WCA1..that alone is bull from the DWP and cannot be right

    then they said the 6 month rule mean't I could make a new claim but would not be paid until a new WCA had taken place ..

    i feel im having the wool pulled over my eyes here and I still do not understand this 6 month rule for ESA payment purposes..

    I failed WCA2 on the 19 dec 2010 but failed the WCA1 way back in mid 2010 so not sure from when the 6 mth rule kicks in

    going to CAB in the morning to get things really clariified unless anyone can provide light on this

    many thanks

    sd


  10. #10
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    Default Re: ESA Upper tier tribunal appeal

    ''Girdy - Posted: 7 Apr 2011 at 8.58 am - forum member
    Rochdale CAB, NW
    Total Posts: 16
    Joined 1 Jul 2010
    I have a few clients who are claiming assessment rate ESA whilst waiting for their ESA appeal and during this period have a further medical assessment, again failing to score 15 points. If they loose their appeal do you think they can reclaim ESA, because more than 6 months have paased since the decision inder appeal or will they have to wait 6 months from the date of the most recent assessment, which ocurred pending the appeal.
    I hope that makes sense!''

    --

    the above is from rightsnet.org.uk and is exactly the position i am in at present and here is the link:

    http://www.rightsnet.org.uk/forums/viewthread/1283/P0/


  11. #11
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    Default Re: ESA Upper tier tribunal appeal

    SD, on the rightsnet forum, they seemed to come down on the side of that as your claim was ended by the tribunal at a date prior to the second WCA, that there is no second decision, therefore you are more than 6 months from the first decision and your new claim should be paid. I thought this was the case, as I said on an earlier post, but glad to see people wiser than me agreeing.

    From what you were told on the phone, it sounds almost like the DWP are either delibertely trying to mislead you or are confused themselves - who did you talk to, the person who answered, or someone who called you back?

    Basically what you were told on the phone is very very wrong. Look through your appeal pack - can you see a copy of the second atos assessment there? No, because its ludicrous to even suggest that it would be covered in the appeal - it most certainly was not! The DWP can't even make a decision on the second WCA until after the appeal - until then, all they have is the determination of the atos assessor. The tribunal cannot look at a decision that hasn't even been appealled - and a decision has to be made before it can be appealled.

    If the DWP are claiming there was a decision (which there shouldn't be) then you have the right of appeal. If there is no decision then you are more than 6 months from the last decision and you should be paid. The DWP cannot have their cake and eat it - under the regs they have to pay you if you've provided your med cert.

    It does worry me that this appears to be a ploy by the DWP to avoid paying new claims for those who appeal, by jumping on the slightest change on the med cert to trigger a WCA, and then as you say 'try to pull the wool' over the claimant's eyes. Maybe I'm cynical, but from reading the rightsnet thread, either the decision makers really haven't a clue, or its deliberate.

    In any case, going to CAB is a good idea - are they are good one? CAB's vary in quality, and they will need to be very pushy. Were it me, I would be faxing a letter over to the decision maker that day quoting the exact regs that apply and demanding payment. I would also be suggesting to them that my client's next visit if not paid on the new claim would be to his MP to insist on an investigation of these dubious DWP practices.

    Also it might be an idea to print out the rightsnet thread to give the CAB adviser a head start on the regs.


  12. #12
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    Default Re: ESA Upper tier tribunal appeal

    leemack

    I concur

    The person I spoke to had no idea which is worrying because you expect DWP employees to know the rules that potentially can impact upon peoples lives

    Im off to the CAB this morning

    Many thanks for your input and efforts to date

    Cheers

    SD


  13. #13
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    Default Re: ESA Upper tier tribunal appeal

    anyone?,

    Even though I failed my ESA appeal i intend to reclaim ESA but at present im not in receipt of ESA so is it essential to submit sick-notes? This is clarification because today I submitted one for 3 months which I assume is the correct thing to do?

    many thanks

    sd


  14. #14
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    Default Re: ESA Upper tier tribunal appeal

    Yes, you need to submit sick notes.


  15. #15
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    Default Re: ESA Upper tier tribunal appeal

    anyone?,

    Just got back frome the CAB who told me that I could not reclaim ESA after 6 months with the SAME CONDITION. I told them I thought this was wrong and that you can make a fresh claim after months with the same condition.

    Which is correct? I read on Rightsnet.org/uk that you can make a new claim for ESA even with the same condition

    Moreover I have just asked for the decision letter from my second WCA (I didn't apply for or ask for this WCA2 but it was a new condition on my sick note which triggered WCA2 (21/12/10) while I was appealing WCA1 for epilepsy (19/07/2010))

    The CAB have told me I can appeal the WCA2 decision but the DWP told me I cant because its an extension to my WCA1..totally confused on this one.

    Moreover I still cannot determine from what date the 6 moth rule is triggered from. Is it the date from the decision letter from WCA1? From WCA2 or from the failed appeal date?

    totally baboozled

    insight greatly appreciated

    SD


  16. #16
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    Default Re: ESA Upper tier tribunal appeal

    Quote Originally Posted by stalin's dead View Post
    anyone?,

    Just got back frome the CAB who told me that I could not reclaim ESA after 6 months with the SAME CONDITION. I told them I thought this was wrong and that you can make a fresh claim after months with the same condition.

    Which is correct? I read on Rightsnet.org/uk that you can make a new claim for ESA even with the same condition

    Moreover I have just asked for the decision letter from my second WCA (I didn't apply for or ask for this WCA2 but it was a new condition on my sick note which triggered WCA2 (21/12/10) while I was appealing WCA1 for epilepsy (19/07/2010))

    The CAB have told me I can appeal the WCA2 decision but the DWP told me I cant because its an extension to my WCA1..totally confused on this one.

    Moreover I still cannot determine from what date the 6 moth rule is triggered from. Is it the date from the decision letter from WCA1? From WCA2 or from the failed appeal date?

    totally baboozled

    insight greatly appreciated

    SD
    You can't reapply for the same condition WITHIN six months of the WCA decision, but AFTER six months from the date of decision, you can reapply with the same condition. The six month rule is triggered from WCA1. Sounds like you got a bad CAB adviser.

    I know you've asked for the second decision letter, but I'm interested in how they're going to make this decision on your claim - that claim has been closed, so how can they make a decision on it - you have no active claim at that time. They have the determination of the atos assessor, but that is not a decision. It would not surprise me if what they sent you was just the atos report from the second medical. If they did send you a decision you could appeal it - its an appealable decision.

    Sounds like the DWP and CAB are both getting it wrong in different ways.

    Phone the DWP and ask for the decision maker's superviser on your new claim to call you back - don't be put off by the person who answers the phone, they can email the department who should call you back within a few hours. Explain the issues step by step to them and that this phonecall consititutes a complaint about the way your case is being handled. These are the things you should tell them:

    Firstly - details of the second atos assessment were not part of the appeal and could not be part of the appeal as the tribunal were looking at the date of the first WCA decision only. Suggest they confirm this with the appeals department.

    Secondly, your claim was ended following the appeal. The decision maker only had the ability to make a decision on change of circumstances had your appeal been successful, as it wasn't, the second WCA is in effect irrelevant - you can't have a change of circs on a closed claim.

    Lastly, the net result is that you have made a new claim more than 6 months after the last effective decision date (the first WCA), and therefore the new claim should be paid while waiting a new WCA.

    Suggest that if they don't comply with the regs, your next action will be make a written complaint and involve your MP and when its proven they mishandled your claim, you will claim compensation. Make sure you take their name and suggest they take a good, hard look at the regs.

    If they still don't pay you, make a written complaint pointing out the issues above, send it registered post, ask for a response within 7 days of receipt or you will take the matter to your MP - though best to make the MP appt in advance and cancel it if necessary.

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  17. #17
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    Default Re: ESA Upper tier tribunal appeal

    leemack

    I don't what to say except thank you ever so much for your determined assistance and patience regarding my ESA debacle

    your most recent reply as focused my mind and brought clarity on an otherwise confused situation

    Many, many thanks

    SD


  18. #18
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    Default Re: ESA Upper tier tribunal appeal

    No problem, happy to help.



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