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Everything posted by leemack

  1. The cab know more about your condition than we do. Use the help they've offered and complete the ESA50 - you have nothing to lose. If you fail, you can always make the transfer then. If you're going to lose £40 a week, its probably best to make the transition only if you have to.
  2. That's great news, it sounds like your doctors are very supportive, which is half the battle.
  3. Hi, its not immigration restrictions that are imposed but two things that are considered of all benefit claimants: right to reside and habitual residence This a very complex area of benefit law. Normally an EEA national who has never worked would not qualify for an income based benefit on arrival to the UK for the first 3 months, at least. There are other ways to qualify, does your friend have any family or a partner in the UK? Generally though, someone coming to the UK to look for work should have enough money to support themselves. Its not really good for your friend to be wanting to rely on JSA.
  4. Surely you'll get the back pay from the wrag or support component?
  5. I'm confused, in a previous post you said you'd be £15 a week better off transferring to income support - now you say £40 worse off. Its important to get the numbers right so you can make the right decision.
  6. Also residential treatment for drugs or alcohol is important to get right the first time round. No one trying to get clean from these addictions in a residential setting should be faced with the added pressures of having to look for work and jump through jobcentre hoops. This is a case where having to be available for and look for work could have severely detrimental effects on their health, to say nothing of the fact that they can't actually take up a job while in a residential treatment program. With more and more evidence that addictive behaviours may have a strong genetic and physiological component, excessive moralising about those who are trying to get better should be discouraged.
  7. Yep this an area where those with mental health issues are doubly discriminated against. Firstly the Atos process does not treat them fairly, and the when they fail the process, or things go wrong in the process (or both), they are much less likely to use the appeals or complaints process, or get any problems sorted out. The number or people I had referred when I did outreach at the community mental health team was unbelievable - and a good proportion had let benefit issues fester as they couldn't cope with dealing with it themselves. And all the while the Tories remove help and support for these people that need the most help - including the service I used to work for.
  8. The person he speaks to on the phone knows nothing about his case. They look at the info on the screen, which all too often will just say the case is closed without saying it is clerical. Only a decision maker can give him any info in a clerical case - ask the person who answers the call to arrange for a decision maker call back regarding his clerical claim. Most payment issues are due to med cert issues. The reality is that even though he's now claimed Jsa, he's due a substantial backpayment still on the ESA claim - this is money he is owed.
  9. I think you're confused about the appeals process. You make one appeal. The DWP then decide whether or not they will change their decision. If not your case is automatically sent to the tribunals service for a hearing to be scheduled. If you look at my post, I'm talking about the info you'll need to provide for your tribunal hearing. As I said, you don't have to push for a hearing - this happens automatically if the DWP do not change their decision. In the appeals process, never assume that the DWP or tribunal will know or find out anything about you or your condition. It is your responsibility to make sure you provide all the information necessary to make the right decision. Treat them like they know nothing - you won't be far wrong! You need to make and prove your case. Those that don't will fail at tribunal.
  10. I think there seems to be some confusion here. You can transfer from esa to your partner claiming income support whenever you like. DLA does not stop you having either an atos assessment or a wfi. No one can make you work if your partner is claiming income support as your carer. They also can't make you work if you're claiming ESA. Nystagmite, the original poster is aware he can't claim both benefits, he's talking about transferring and when to transfer. Jamey125, you seem to be getting overly stressed about what is normally a very simple transition.
  11. Original poster, you really need to get some professional help from a benefits expert - welfare rights or CAB. They need to go through the overpayment notifications and check if they're even correct (most are not). If the overpayment is less than has been stated this needs to be identified and appealed. You also urgently need legal advice on the criminal case. Do not sign or plead anything until you get advice.
  12. If the appeal has been accepted ESA is paid on appeal as long as med certs are provided. If he's provided the med certs chase up payment - he's due some money.
  13. Hi. In order to get into the support group you have to either fulfill ONE of the support descriptors: (over two pages) http://www.newcastle.gov.uk/core.nsf/a/wr_esadescriptorslcwranew1 http://www.newcastle.gov.uk/core.nsf/a/wr_esadescriptorslcwranew2#understandingcom Or being treated as having limited capability for work: Treated as having limited capability for work There are some circumstances where a person can be treated as having limited capability for work. These people should not have to go through the points based assessment: terminally ill receiving chemotherapy (unless it is via oral medication) under notice as a carrier of, or had contact with, an infectious disease pregnant and would be a serious risk to health of claimant or baby if did not refrain from work pregnant, entitled to Maternity Allowance and within the Maternity Allowance period pregnant or have recently given birth, not entitled to Statutory Maternity Pay or Maternity Allowance, from 6 weeks before the birth to 2 weeks after baby is born hospital inpatients receiving treatment by way of haemodialysis, plasmapharesis, radiotherapy or total parenteral nutrition, in any week when receive treatment or have a day of recovery from treatment. In the first week of any such treatment, claimant is only treated as having limited capability for work if they have: 2 days of treatment; or 2 days of recovery; or 1 day of treatment and one day of recovery The days do not have to be consecutive And from 28 March 2011: People likely to start chemotherapy within 6 months. These claimants will also be treated as being unfit for work related activity and will be in the support group People attending residential rehabilitation for drug or alcohol problems People who satisfy either of the “conveying food or drink to the mouth” or “chewing or swallowing” descriptors in the limited capability for work related activity test Or meet the exceptional circumstances criteria: Exceptional circumstances A person who fails to score 15 points can be treated as having limited capability for work if: there would be a substantial risk to the health of any person if the claimant is found not to have limited capability for work; or they suffer from a severe life threatening disease and there is medical evidence either: that the disease is uncontrolled or uncontrollable by a recognised therapeutic procedure; or that it cannot reasonably be controlled by a recognised therapeutic procedure If you think you meet one or more of the descriptors or other criteria, then the trick is proving it. All the letters from your doctors saying they feel you are not able to work won't mean anything unless they speak directly about the criteria and descriptors above and why you fulfill them. So you need to go back to your GP, show them the criteria, and see if they can write something specific. You will also need to provide plenty of information about the effects of your rare condition - this can be things from internet sites or from books or journal articles, but everything you provide should be properly referenced. If your condition is rare, it is unlikely that anyone looking at your case will have knowledge of it - you will therefore need to provide comprehensive information about the condition, its effects and dangers. You will also need to write a submission/statement, arguing your case - honeybee has a sticky on appeals that will help you on how to write it. In a submission you rip apart the DWP Atos case, and then put forward your own case. Be aware that you will also have to argue the work capability descriptors as well, as tribunals will look at the whole award again. There is also a small risk you could lose your current award. Honeybee's sticky: http://www.consumeractiongroup.co.uk/forum/showthread.php?251737-Appealing-or-going-to-a-Tribunal-Some-useful-information We're happy to look at any submission/statement you write if you post it up (with indentifiers removed).
  14. You misunderstood !! - I was pointing out that if they're already receiving an income based benefit there should be no problem transferring to another income based benefit.
  15. The only difficulty you will have is maybe a gap in payments while the income support claim is processed (though any payments will be backdated to date of claim). This can be helped by choosing carefully when to end your claim and start the income support claim - for instance the day you receive payment. The only reason a claim would be refused is if the criteria for claiming aren't met, or you have too much income or capital for an income based benefit. If you're already claiming income based ESA for both of you, and he receives carers allowance, then there should be no problems. The DWP do not arbitrarily decide to block claims. The law has to be followed. Your adviser has done the calculations and based on benefit regulations, has told you that not only will you be better off, you won't have to do any medicals. The regulations that your adviser uses to advise you, and the DWP use to award benefit, are the same. Only you can decide what to do. If I were making the decision for myself, I would have my partner claim the income support and not go through the medicals for a few years - I would probably still decide this if it meant losing a few pounds a week.
  16. He just has to attend the interview and discuss opportunities for carers - that's it. As long as he attends there is no problem. He won't be asked to look for work, but will be asked about his current circumstances. For carers its just a formality.
  17. You would think, wouldn't you! But no, all too often assumptions are made and the law misapplied, and it falls to the claimant to prove their case. When you appeal your decision will go to the appeals section and a more experienced decision maker will take a look - so hopefully the decision will be changed there. (but no guarantee) At the moment you don't need to worry about making a case that you were misadvised - though there's no harm mentioning it. The main thing is as you've said, is to confirm that your claim has been stopped due to notional capital being taken into account (your CAB adviser should be able to phone to confirm this is the case), and then put in the appeal making strong arguments.. Later, when you get the overpayment notifications, you will then need to appeal and argue being misadvised.
  18. Personally, I don't give personal details over the phone to unsolicited callers. They could be anyone, and could claim to be anyone. It makes people annoyed when they call me and say 'I'm x can you confirm your date of birth and postcode' and I say no. If I've called them, or I'm expecting the call, then that's different. If I were you I'd refuse to give further information and make a complaint in writing to the jobcentre that unsolicited callers have been asking for personal info based on details given out by the DWP - and that if you did agree to take part in a survey, the implications weren't fully explained to you and therefore you did not give informed consent, and now withdraw your consent. You're under no legal obligation to take part in the survey, don't let them bully you.
  19. No problem, happy to help. I did check the benefit guide I have, just to confirm (though its from 2006), and it does say that a loan normally counts as money you possess. There are a few disregards, but yes, they are due to property, and also as in the quote you've given on loans that immediately need to be paid back, but this doesn't apply to you unfortunately. Make sure you have contacted the housing benefit section as your income support stopping is a notifiable change of circumstance. I assume you're claiming DLA? If on the small chance you're not, put in a claim. The most important thing is to prioritise what you need to need to pay out of the income you have at the moment and pay the priority stuff first. The CAB may be able to advise better than me on this. And if you can convince the LA to make a different decision on your housing benefit than the DWP did on the income support, then you should still qualify for housing and council tax benefit. Hope it goes well with the CAB, we're here if you have more questions.
  20. But being misadvised is! If you take the time to try and find out the rules and a DWP employee tells you the wrong advice, then this is a defence. However, it is difficult to prove.
  21. Regarding the house, is it council, housing association or private rented? I ask because judges are very hesitant to evict people even if it comes to that. I had a client waiting for a housing benefit appeal, who by the time the appeal was won was thousands in arrears, but with us going to court each time the council went for possession, and explaining the situation, the judge suspended the hearings until the appeal was heard - end result, the appeal succeeded and the backpayment covered the arrears. And I think you are thinking of the worst case scenario anyway. Yes, you have to tell the council of your income support ending, but the council are required by law to then evaluate your housing and council tax benefit claim themselves, and not just rely on the income support decision. They won't necessarily make the same finding on the loan and notional capital. Although its true that some councils have to be firmly encouraged to make their own decision and not rely on the income support one. I do believe that the income support decision is wrong, and with good representation your claim can be reinstated and you won't have to lose your house. The important thing is to get a speedy appeal if the DWP refuse to change their decision - having your rep contact the tribunal service directly if the DWP delay in sending your case, and asking for an expedited hearing. Its also important to remember that evictions don't happen quickly - (assuming you haven't started with arrears) they take months and months and your landlord has to convince a judge that it is merited, with an adviser in your corner explaining why your appeal is likely to be successful. I've had clients with thousands in arrears, but awaiting appeals, not get evicted. So don't worry until you get to that stage. And remember, I don't know your case, I'm only hypothesising that its notional capital that's been applied - best to get your adviser to check that this is the case. But I think its pretty silly for them to try to claim deprivation of capital over a loan, and if properly argued by your rep, can't see a tribunal agreeing with them, as there's no way to prove intent to gain benefit in your situation, and this has to be shown in order to prove deprivation of capital. With an overpayment, if it comes, you'd just be paying it back out of your benefit, though you should immediately appeal the decision when it appears, and request that no deductions are made while you are appealing. Be strong. Take this one step at a time, and don't assume the worst outcome.
  22. If notional capital is the reason behind your claim stopping, then any new claim would fail for the same reason until the reasons behind the notional capital finding have been overturned - either by proving their was no deprivation, using the diminishing notional capital rules or proving being misadvised - or a combination of all three. Its a difficult position you find yourself in and you are right to be seeking professional help to deal with this - its a very complex matter and will need someone experienced to follow the matter through with you. Even if you get the claims reinstated, an overpayment notice will inevitably follow which will need to be checked thoroughly by an adviser that it is correct - many overpayments are calculated wrongly. Some advisers aren't aware of the diminshing notional capital rule - make sure yours is. Hope you get it sorted.
  23. deprivation of capital can be about getting rid of savings in order to continue receiving benefits, not just to get an increase in benefits. I think you'll find that if you ask in writing for your case to be reconsidered, giving evidence that the capital was due to loan and also giving details of why you took out the loan, what you spent the cash on (with receipts or bankstatements to prove purchases), and why there was a delay - that the DWP will overturn their deprivation of capital decision and reinstate your current benefit entitlement. I've handled a number of cases like this and the outcome in each case has been favourable. I do think you will end up with an overpayment for any period you had undeclared savings in excess of the limits. You can then appeal this on the basis you were misadvised - but first you probably should do a subject access request to get all records they have on you - there is a small chance that there is a note on the system from the person who advised you wrongly regarding the capital rules. If you can't find evidence, then its your word against theirs, unfortunately. You purchased a car pretty soon after getting the loan - I assume this was the bulk of the loan amount, so the overpayment period in this case would be quite small. the most important thing to do first though is to challenge the deprivation finding (assuming that's why your benefit was stopped), and get your benefits reinstated. Unfortunately the DWP do not consider feelings or situations or hardship unless they are specifically requested to. they just see a decision to make in front of them, based on the facts they have, in writing in front of them. This is why you need to give them more information on your loan and purchases to help them make a better decision. Were they remiss in not asking you for the information first before they ended your claim - definately yes, but we can't change that now (though once you get your benefits reinstated, you should put in a complaint), we just need to work within the system to ensure the issue is rectified.
  24. Loans are normally treated as capital while you have the money, though in limited circumstances can be disregarded. there are several issues that appear to be relevant here. Firstly, you may be subject to an overpayment for the time you were actually in possession of the funds. But diminishing capital rules apply which probably haven't been taken into account. (this is where your savings are treated as reduced for benefit purposes by the amount you would have been spending had you not been in receipt of the benefit). however if you no longer have the funds, then stopping your income support now will probably be due to the DWP treating savings you used to have as 'notional capital', because they believe you deliberately deprived yourself of the money in order to continue to qualify for benefits. Basically they treat your claim as if you still have that amount of savings in your bank, even if you no longer do. The best way to counter this is to ask for a reconsideration of the decision in writing (or appeal if the decision has already been reconsidered), firstly stating why you took out the loan and when, then detailing the medical problems that prevented you from buying the necessary items including details of hospital stays, then giving details and proof (ie receipts) if available on what you actually purchased. Of course if the items are not considered essential, then this weakens your case. You should also point out that a basic tenet of the deprivation of capital rules is the intention to deliberately get rid of the capital in order to claim or maintain a benefit claim - as this was a loan, all you would have needed to do to maintain your claim is not get the loan! It is also important to point out that you sougt advice from the DWP in advance and were misadvised - if you have a bill showing the call to the DWP at that time (unlikely, I know), then this could be used as evidence. If you are at immediate risk, appeal instead of asking for a reconsideration and ask for an expedited hearing. If you are in a council property, then any eviction proceedings will usually be suspended by a judge on proper explanation of the situation and knowing that an appeal is pending - though in this situation you need to get good representation to be able to assure the judge you have a good chance of success in your case.
  25. You reclaim ESA in the normal way, over the phone, they will need to check out his employment, so how rapidly the claim is dealt with is dependant on the speed it takes the employers to get back to them. As to going back on the same rate, it appears that different claimants have been treated in different ways. Many are going back onto the assessment rate until they have a new ATOS assessment to establish whether the claimant still has limited capability for work. The reason for this is if the person can work more than 16 hours a week, they need to establish whether there has been an improvement in the condition meaning there is no longer limited capability for work. If the person then passes the assessment, the work or support component is backdated to the beginning of the new claim (rather than the beginning of week 14). Some people, though, have had the linking rules applied as they used to be and have been put straight back onto their previous rate and group. It would be good if you could let us know what happens with your husband. Regarding permitted work, my understanding is that it can continue, but that the 52 week period (unless supported permitted work) is continuous from the date the work initially started, as it is a linking claim within 8 weeks.
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