Mandatory Reconsideration, Appealing or going to a Tribunal? Some useful information

[honeybee13]

Note - ignore the (E). This just means that Erika has added some information to a post.

Atos haven’t given me enough points to carry on claiming ESA

 

Welcome to an ever-growing club of people caught up in this system. Unless you’re one of the lucky few, some time after your Atos assessment, you will receive a letter from the DWP telling you that you have scored between 0 and 14 points at your ‘medical’.

 

Edit: The system was changed as of 28th October 2013. While the stikky is being updated to reflect this, here is a link to the DWP advice on appeals.

 

https://www.gov.uk/appeal-benefit/decisions-made-on-after-28-october-2013

If you appeal this decision, your benefit will revert to the Assessment Rate as of the date of the letter. (E) It is important to note that only those appealing the decision where not enough points have been awarded for ESA will have the assessment rate reinstated. People who appeal a decision when they have not attended a medical and have subsequently had their claim terminated or appealing ESA for any other reason will not be entitled to a reinstatment of benefit pending the outcome of their appeal. (E)

 

Everyone receives the Assessment rate for the first three months [91 days] of their claim, but if you are successful in your appeal, the additional payments for ESA are backdated to day 92 of your claim. Here’s a link to the figures.

 

http://www.direct.gov.uk/en/Disabled.../esa/DG_171896

 

With the letter telling you the result of your assessment, there should be an appeal packcontaining the standard form GL24. It’s called ‘If you think our decision is wrong’. You need to fill in the GL24 and send it back within one month. You can also (E) download the form online(E), or pick one up at your benefits office. Don’t go over the one month deadline for sending or taking it back, and take time to fill in as much detail as you can to support your case.

 

If you need help with completing the form, you can try the CAB, Welfare Rights [through your local council], or a local law centre.

 

The appeal form will go to a DM [Decision Maker] at the DWP, who will consider the points you’ve raised and write to you again with a decision.

 

If the DM agrees with your appeal, then you will come off the Assessment rate and back onto ESA [backdated to day 92 of your claim], according to which work group you’ve been put into. Amounts are in the link above.

 

As said before, from the date of the letter containing the appeal pack, your benefit reduces to the Assessment Rate until such time as you manage appeal or go to a tribunal and have the decision overturned. If a decision is upheld, you will receive back payments of the difference between the assessment and ESA rates, currently about £25-30pw [see the link above.]

 

Here’s a link to the DWP on the appeals process.

 

https://www.gov.uk/government/publications/appeals-process-changes-for-dwp-benefits-and-child-maintenance

 

(E)Or click here for the DWP Code of Appeals procedure (E)

 

Otherwise, you will be looking at the second stage of the appeal process, a tribunal run by a separate service. This stage can take anything from 9 to 12 months at the time of writing, going by other caggers’ stories. The tribunal stage is covered in the posts which follow below

 

During this time, you will unfortunately stay on the assessment rate until a different decision is made.

 

(E) New WCA Handbook for ATOS (E)

 

 

 

Template to the tribunal, once you have received DWP submission

 

Erika has been helping me to work on a template based on my appeal when my IB was suspended, following an Atos assessment. Thank you for your time, Erika.

 

It may have its limitations and I apologise if it does, but Erika and I thought it might help anyone who is preparing for a tribunal. It has been designed to be adapted for people's own situations.

 

I hope it is helpful to someone. The template follows.

 

My best, HB.

 

[Heading: name, date and venue of hearing]

National insurance number

 

 

Introduction

 

I, (name) am appealing against the decision made on (date) to decline the award of Incapacity Benefit/Employment and Support Allowance (delete as appropriate) on the grounds that I have not attained 15 points from the combined Physical and Mental Health descriptors following my Personal Capability Assessment (for IB)/ Work Capability Assessment (for ESA) on [date].

 

I believe and I will demonstrate below that by scoring the descriptors relevant to my condition correctly that I do attain the required threshold of 15 points.

 

[This link will take you to the DWP's own Pdf document about the assessment and 'descriptors' scoring system they use. From page 18 onwards, there are descriptions of all the conditions they or Atos can look at and the number of points allotted for each, depending on the severity of the symptoms. We allocated the points we thought they should have been done by Atos, then itemised it all in the letter below.]

 

http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/@disabled/documents/digitalasset/dg_177366.pdf

 

I hope that the Tribunal will support my appeal and that the Tribunal will authorise the re-instatement of my award.

 

 

 

_____________________

 

I would like to refer the Tribunal to Item (number) in the Appeal Submission – Form IB85/ESA85 Medical Report. I shall now explain where the report’s content is inaccurate.

 

Item insert number – IB85/ESA85 Medical Report (Appeal Submission pages insert page numbers)

 

The report does not reflect accurately those matters discussed and assessed at the medical examination that I attended on [date]. Referring to the content of the Medical Report Form, on:

 

In here, insert bullet points referring to what the report stated, followed by what the accurate assessment should have said, for example:

 

• Page *insert page number: Standing: the report stated that I am unable to stand for more that 30 minutes without having to move around. This ability was not tested as part of the Assessment, most of which was undertaken in a sitting position, so I find it difficult to understand how the doctor can disagree with my opinion. In addition, my enclosed letter of support from my consultant of (name hospital) NHS trust clearly contradicts the ATOS assessment in this area.
  

And continue like this in bullet point form, pointing out the contradictions throughout the report and scoring.

 

When scoring the Personal Capability Assessment/Work Capabilities Assessment I feel that both the Medical Services doctor and Decision Maker have over-estimated my level of ability. By revising the Score card to take account of my actual Physical and Mental Health conditions, I am of the view that I satisfy the threshold of 15 points required for the award.

 

 

Conclusion

 

In conclusion, I believe that the scoring of my Personal Capability Assessment/Work Capability Assessment should be revised to take account of my actual Physical and Mental Health abilities.

 

I hope the Tribunal will support and find in favour of my appeal, determining that I am incapable of work from [date].

 

 

 

 

 

_________________________ _________________

 

I declare that the content of this Summary forms the basis for my appeal and that the information is correct and complete as far as I know and believe.

 

 

 

 

_________________________ _________________

Signed [Appellant]

 

[date]

Edited September 29, 2015 by honeybee13
updating sticky

[honeybee13]

Quite a few questions have been asked on this and I hope this will be helpful. My thanks to Bookworm for her help with this.

 

You’ll be going to a tribunal because you’ve already appealed to the DWP and their DM [Decision Maker] has upheld the original decision. Here’s a link on how to appeal a first decision, from the CAB.

 

https://www.citizensadvice.org.uk/benefits/benefits-introduction/problems-with-benefits-and-tax-credits/challenging-a-benefit-decision/challenging-a-dwp-benefit-decision-on-or-after-28-october-2013/appealing-against-a-benefit-decision/appealing-against-a-dwp-benefit-decision/

 

The paperwork or information on how to go to a tribunal should have been enclosed with the DWP’s reply refusing your appeal, or you can contact the Tribunals Service via their website.

 

First tier Tribunal (Social Security and Child Support)

 

The tribunal service is independent from the DWP, but the DWP send them your file paperwork, plus any submissions you have made. In my case, the DWP office was many miles from the town my tribunal was in and the clerk travelled down for the day.

 

I can only speak from my own experience and hope it doesn’t vary too much over the country. We reported to the tribunals’ reception, which was for benefits and employment appeals that day. We were sent to the benefits tribunal waiting room which was being run by the clerk. He made sure people got to the right room to see the panel and looked after any paperwork. Ours was a nice man.

 

I took my OH with me and he wasn't allowed to speak for me, although he helped me to remember the bits I left out. In understand it’s the same for a professional rep. You are also allowed to take an adviser like the CAB, Welfare Rights, etc. if you can find someone.

 

My hearing was in a large room that had a table at one end with the panel, a lawyer chairing it and a doctor. Sometimes there will be a chairman, a doctor and a layperson with an interest in the field. We were the other side of the room, far enough away that I needed my glasses on to see their eyes. There was lady from the DWP taking notes and an observer from the DWP or tribunals service to see how the panel were carrying out their responsibilities, I imagine. I haven’t heard of anyone else having an observer, so I guess it’s a rare occurrence.

 

The panel had already read my file of papers from the DWP.

The chairman explained what the hearing was about and then handed over to the doctor. The other people never spoke. The doctor asked about how I became ill, what my symptoms were, and how they affect my daily life. We also repeated the professional advice I had been given about not returning to work. The doctor went into quite a lot of detail of how my symptoms affect me on a daily basis.

 

I had problems in addition to what was on the Atos assessment, because the Atos 'doctor' hadn't put them on the computer when I was at the assessment.

 

When I said I have other problems, they asked me a few extra questions and took my word for it. The whole thing probably lasted up to 30 minutes, but I believe the length of time varies over the country and depending on the particular case.

 

Then they asked us to go back out to the waiting area while they had a discussion about my appeal. When we came back into the room, there was a written notification that they had upheld my appeal. I know from the forum though, that some decisions are not made immediately if the tribunal need more information.

 

Further down this thread, I have copied and pasted what Bookworm added to my thoughts.

 

 

Don’t forget to fill in the expenses claim form, if the clerk doesn’t remind you!

 

 

One fairly trivial point occurred to me and I don't suppose it happens often. At least, I hope not.

 

‘Our’ centre also deals with employment tribunals and has two or more different waiting rooms, depending on which one you're seeing.

 

The reception person on the desk when you arrive at this tribunal centre doesn't work for the DWP and the list of cases seems to be with the clerk. The tribunals receptionist, more like a security guard actually, put us in the wrong waiting room. After being left there for too long, and it was b*** freezing, we asked if they'd forgotten us. The security type didn't seem able or willing to contact the DWP, so we did by mobile phone. Twice, after being left there a lot longer. The DWP office just said 'There there, we'll get round to you'.

 

When eventually we found out who the clerk to the tribunal was, he said unfortunately one panel member had gone already because they thought we had no showed, so they couldn't deal with us that day. It's bad enough screwing up all your courage to attend, but being told to go away and come back in weeks' or months’ time is enough to make you ill. Iller than you already are, that is.

 

I'm sure this is a rare occurrence, but if you are at a tribunals office with a choice of waiting rooms, try to make sure you're in the right one. And don't be as patient as we were. Had we known there was a clerk to report to, we'd have been seen by the tribunal that day, but no-one had explained the system to us and frankly, the left hand didn't know what the right hand was doing.

 

 

[From Bookworm] Just to add to Honeybee's description:

 

The panel is made of 3 people: a lawyer (usually will be the chairperson and sits in the middle), a doctor, and the 3rd person is a layperson with a particular interest in the field of the subject in front of them. They are independent, which is a great relief after having the DWP's biased people against you for so long.

 

The DWP may or may not send a representative. If they don't, the panel is obliged to deal with the case as if there was a DWP rep, and so may ask questions that they would have expected the rep to ask had he been there (does that make sense?).

 

The main thing is take it slowly and don't be defensive. If you don't understand a question, say so and ask them to rephrase it, that's better than misunderstanding and then messing up the answer.

 

By now, you will have a massive file in front of you no doubt, make sure you have indexed and double-referenced everything so you can find anything you might need to refer too in the minimum of time.

 

Prior to the hearing, the tribunal will have contacted you to ask you for all the evidence you wish to submit, and sent you a copy of the DWP's dossier, and sent the DWP a copy of yours. You MUST include everything you will rely on, no surprises on the day! IF you have some last minute evidence, the clerk will ask you when you arrive if that's the case, and he will make copies for the panel and the DWP prior to the hearing.

 

You might have to wait a while to get called in, it's because the panel may be refreshing their memories and going through your file and the DWP's before calling you guys in.

 

The chairman introduces everyone and in which capacity they are there. They will go through what the hearing is about, what is being contested, making sure that everyone is on the same page.

 

If you need a break, feel unwell, need to regroup or are losing focus, say so. The panel will expect you to be nervous and flustered, they know you're not a professional and they do make allowances for that.

 

Once the hearing is over, you are usually asked to go outside and wait whilst they deliberate, and then they tell you there and then their decision, and sum up.

Edited September 29, 2015 by honeybee13
Updating.