estellyn
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Everything posted by estellyn
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You don't get paid ESA while 'appealling against the appeal' - he would need to make a brand new claim to ESA if his WCA decision was more than 6 months ago, and if less than 6 months ago prove that his conditioned has worsened in order to make a new ESA claim.
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Attendance Allowance for mum - how can you get it??
estellyn replied to della2's topic in Benefits and HMRC
Yes and OT assessments are particularly useful for AA. -
No, it will be a computer generated reassessment it isn't personal. Do you have a copy of the Tribunal recommending no reassessment for 2 years? If so write a letter to the DWP enclosing a copy of the recommendation and request that the DWP abide by the Tribunal's recommendation. Explain that the stress of further reassessment on top the recent appeal would be very damaging to your mental health and is unecessary given the Tribunal's recommendation. In the meantime you will have to complete the ESA50, or your benefit may well stop. You may also want to contact your MP and ask them to contact the DWP on your behalf.
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Do you mean second appeal, as in second time failed a WCA and had to appeal and go to Tribunal, or second appeal as in appealing the first tribunal decision?
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Attendance Allowance for mum - how can you get it??
estellyn replied to della2's topic in Benefits and HMRC
If she's seeing a physio, then they would have a better idea of her needs than the GP - speak to the physio to see if they would agree to provide information about her condition and needs. remember that in order to get AA for daytime needs you need to prove that she needs frequent help throughout the day, so you need to show 5 to preferably 10 seperate occasions throughout the day that she needs help with personal care. -
yes, sadly, only a recommendation and not a directive - though it should be IMO.
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Help with DLA form - describe my worst days or not?
estellyn replied to cupcake69's topic in Benefits and HMRC
Yes you should make a new claim as well as investigating to see if an error of law has been made. An error of law would be that if there was sufficient evidence that you had mobility or care needs to qualify for DLA, but they had refused you for lack of a diagnosis. BUT, they need to have had evidence that your needs were such at the time of the claim - your own evidence, OT evidence, GP evidence etc would count even without an official diagnosis. -
Yes, absolutely that's what the housing association want - but having come up against a council who wanted the tenant out at all costs - even doing some really reprehensible stuff - a good argument on the likelihood of a HB award being made at appeal, can be very effective on a judge. they really don't want to evict people unless they really have to. Obviously we really don't know the truth of what's been said, but the housing association will be limited as to what evidence they can present that the new claim won't succeed, as they won't have access to any data from the fraud investigation. If positive evidence can be presented that the ex in question is currently living elsewhere, then a good benefit/housing adviser could convince a judge to continue suspended possession. Sadly i've seen HB appeals officers with no evidence of current fraud though there may be past fraud), refuse a current claim, even knowing it will get overturned at appeal, and that in the meantime the person will in all probability get evicted - like an extra punishment they are giving out for the fraud. One appeals officer definately was doing this as she more or less admitted it, and tried to things to mess the claimant's other valid claims for other benefits.
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Help with DLA form - describe my worst days or not?
estellyn replied to cupcake69's topic in Benefits and HMRC
Firstly write to the Tribunal asking for a statement of reasons. This is what you use to see if there has been an error of law. -
Help with DLA form - describe my worst days or not?
estellyn replied to cupcake69's topic in Benefits and HMRC
Unfortunately doesn't mean they're right according to the law. -
Suspended possession usually means the eviction won't take place along as certain terms are met - like making payments and getting housing benefit in place. would guess if it isn't in place within the time period or the suspension, then the possession order will go ahead - unless there is convincing evidence of the potential success of appeal of the new claim. I did have a client with in excess of 2K arrears and managed to hold off on eviction until the appeal had been heard - but I went to the possession proceedings myself as a benefit adviser and argued for her myself and explained the appeal issues to the judge - but it wasn't a LTAHAW case, it was a right to reside case, and I managed to get the hearing adjouned each time rather than getting a suspended possession order as there were potential HB arrears involved aswell, which helps.
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No problem, we'll be here when you get more info.
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Appealing the decision would not do any good as it does not cover the period in question - you need to apply for backdating for that period first, which will probably be refused and then you appeal. A complaint about being misadvised needs to be put in stating exactly what happened, how you were misadvised - which includes about the waiting days and not being told about applying for backdating when you asked about the days between the end of the last claim and beginning of this one. You need to make very clear what the implications are of being misadvised and how financially you will be missing out with the run on period. If your houisng benefit was still in payment those days then you should still be entitled to H and CTB run on, I think.
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Ok, this is the process: An appeal is made in writing to the council or on form GL24 to the DWP (if there is a DWP decision to appeal). The appeals section for housing benefit (and DWPif relevant) will look at their decision again and if they can't change it will send an 'appeal pack' to the Tribunals Service - this is everything to do with the decision from original claim forms, renewal forms, printouts of contacts with the HB section, maybe a transcript of the IUC, details of any evidence they have collected - and their arguments as to why they thing your friend was living with her ex. Around this time the person appealling will be sent a copy of the appeal pack and on the top is a form to send to the Tribunal Service stating if the person wants an oral or paper hearing, needs an intepreter, can accept a cancellation on short notice. This is thn sent back and if the person opts for a paper hearing (very very bad idea) they just wait for the decision. If its a face to face hearing, then they are sent a date and time to attend for the appeal to be heard. this should all have been explained by the solicitor. If a paper hearing has been requested, she needs to immediately request it changed to an oral hearing - a paper hearing in this case would be very unlikely to be successful. yes more evidence can be sent, but also important in a case like this is that someone experienced pulls together a 'submission' for the Tribunal, which is basically a written statement explaining your friend's side of the case, presenting her evidence in context, and arguing against or explaining any evidence presented by the other side (which will be in the appeal pack). what area of the country is your friend in? we may be able to suggest some organisations in the area that could help.
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My experience with these things is that stories in these situations always have to be taken with a pinch of salt.
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There is no waiting period moving between claims or reclaiming, I think as long as there is less than either an 8 or 12 week gap inbetween (can't remember which off the top of my head). Put in a complaint regarding being misadvised and request an application for backdating the JSA.
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What do you mean by 'sent in the appeal pack'? If the appeal fails then the only reason it can be appealled further is on an error of law - this happens rarely. So if the appeal fails then the overpayment stands and there is nothing to stop criminal prosecution - why its very important to get the right representation.
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My understanding is an appeal has been put in regarding the original living together decision. A revision has been requested regarding the new claim which was refused on grounds they were still living together.
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yes, she might have filed the appeal and started the process, but from what I understand they haven't been heard yet. A case needs to be built by someone who actually understands the system - a lot of criminal solicitors don't - and its already been stated that this solicitor only does criminal court, not civil - benefit Tribunals are civil court.
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If the solictor hasn't already requested an urgent appeal, advised appealing the recent HB claim decision and started trying to get evidence showing the ex was living elsewhere, then he doesn't know enough about benefits to take this case to tribunal.
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Actually, what your friend needs most right now is an experienced benefit adviser to take over the case going to Tribunal. This adviser could then try and get the case heard urgently, and were it me I would make the request for a revision of the new claim into an appeal request and try to get both heard at the same time, since they deal with the same matter - when and when not the ex was living at her house and whether he is currently living there. Everything will hinge on the appeals, so getting help with this along with help from shelter should be a priority. She needs the urgent hearing on both claims, and she needs to be putting together evidence for the time period in question that ex wasn't living there, and explanation (ie hospital stay) for the times he stayed there. How co-operative is the ex? Is he willing to provide information about where he was staying during the time periods, and documents proving his address now? If he stayed with people, are they willing to provide statements confirming he was staying there? When she gets the appeal pack through she will need to go through the evidence with the benefit adviser, and have a reasonable explanation for everything. The difficulty will be for any periods where he was 'no fixed abode' or couldn't prove where he was staying - the absence of any evidence of the ex living elsewhere, will be considered sufficient to show he was living with her. She needs a benefit adviser experienced in appeals, preferably LTAHAW appeals. Successfully showing that the ex doesn't currently live with her is the only way of keeping her home. Successfully proving at appeal that the ex wasn't living with her during the time periods in question may well be the only way of avoiding prosecution. A criminal solicitor can be found later if charges are brought (assuming they haven't been, if they have then she ALSO needs a criminal solicitor). An interpreter can be provided by welfare rights organisations and law centres for the appts.
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Yes but whether you appeal or not should have no bearing on whether a penalty is applied - holding a penalty over someone's head who thinks that their overpayment decision is wrong is pretty reprehensible. I also think that if they tried to explain it as 'by appealing you've not been very helpful', they'd be in trouble as penalties themselves can be challenged, and to be seen to be interfering with appeal rights would not be viewed favourably.
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Did you actually apply for backdating to 13th July? ie not just mention to the adviser, but fill in and sign a form requesting backdating and explaining why?
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The more I've read over the past few days, the more convinced I am that it is in fact a way to scrap tax credits - particularly working tax credit, though it does effect child tax credit as well. For tax credits there is a basic disregard (I think around £6,450 for working tax and just over 14,000 a year for child tax) and I can't in anything I've read so far, see how these are going to be taken account of under UC or substituted. Take me and husband for an example - with tax credits we get a disregarded income of 6450 - and both carer's allowance and cont based ESA counts towards that disregard. There is no base disregard as I can see under UC, and the earnings disregard (which doesn't include cont based ESA and carers - both taken into account 100%) is £40 a week for our circumstances, which is only £2080 disregard a year PLUS the taper for any earned income will be 65% rather than 41% under tax credits. Who planned this idiotic benefit? People who want to decrease entitlements to what is now tax credits. To summarise under current rules 6450 of our income is disregarded and 41% of the rest taken into account including esa and carers. Under new rules there will be a £2080 disregard, ESA and carers taken into account 100% and the rest at 65%. I'll keep researching, maybe I've got the wrong end of the stick.
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Help with DLA form - describe my worst days or not?
estellyn replied to cupcake69's topic in Benefits and HMRC
This is why it is so important with DLA, ESA and later with PIP, to be very specific and detailed, and also wording things in the right way. The difference being between writing: 'I can't walk far due to arthritis' and: 'I have arthritis in my hips, knees and ankles, this causes severe pain and stiffness in all these joints when standing or walking. On an average day I can only walk about 10 metres before the pain becomes so intense I have to stop and sit down for at least 30 minutes. On my bad days I cannot walk more than a few steps before the pain becomes too much to continue. On my very best day, I can only walk a maximum of 25 metres. I have about 3 bad days a week, and about one or two good days a month, the rest are average days. On an average day I can walk to the car in my driveway and that is it, but on a bad day I cannot even leave the house due to the joint pain affecting my walking. (just an example, not about my issues) Detail is everything - in fact normally I'd write more about aids and ability to use them etc, but you get the idea.
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