New ESA claim following previous ESA claim tribunal being disallowed

[Mutton Jeff]

Anyone else done this if so what was the outcome? My experience does not conform with guidelines on DWP website or views of Centre advisors.

 

I claimed ESA in August 2009, my work capability assesment (WCA) was October 2009 and my ESA decision that I was fit to work made December 2009. I appealed this decision and my ESA assesment phase was re-instated with my appeal tribunal held in June 2010 where my appeal was disallowed

 

I heard nothing following this tribunal so contacted them last week and I was told I was in a backlog, but they pulled out my case and my ESA was stopped last week with effect from the tribunal date in June

 

I was advised by CAB to make a new claim as it was over 6 months since my last WCA but this was immediately turned down. In their view the 6 months time rule dates from when the last decision was made by them ie the appeal tribunal. This is contrary to views expressed on here and DWP web guidance

 

I challenged this (politely) to no avail, and was told the "overpayment" since June would be subsequently recovered. I have also had my Mortgage and Council Benefit stopped from the tribunal date and presume they will want to recover their "overpayments" too

 

The dilemma is do I challenge this decision during which time I will get no benefit or apply for JSA and risk not getting it as I am not fit to work?

 

Advice much appreciated

[stalin's dead]

The most important thing when faced with a situation like this is to maintain an income. If I was faced with your dilemma I would claim JSA then reapply for ESA when the time limit expires.

 

At least you'll get your CT and Housing Benefit reinstated.

 

You cant pay the bills with fresh air mate

 

GL

[honeybee13]

Hello and welcome. We have at least one forum member this has happened to and I hope the lady I have in mind will be along later.

 

HB

[RaeUK]

Hi Mutton Jeff, this is sort of along the lines of what happened to me. However, I was able to reclaim ESA immediately as I could prove my illness had gotten worse - the only plus side of a progressive disease! Is this a route you could go down?

Best wishes

Rae

[Bulbie]

The same thing happened to me, whoever said you can't pay the bills with fresh air is absolutely correct but conversely, if you apply for JSA out of desperation, which the DWP want you to do btw, all it does is prove to them you're absolutely fine and it will guarantee you won't get ESA next time around. I've just gone through it all, that is where my info comes from.

 

With the DWP, you're damned if you do, and damned if you don't.

[GRUMPYOLEMAN]

Anyone else done this if so what was the outcome? My experience does not conform with guidelines on DWP website or views of Centre advisors.

 

I claimed ESA in August 2009, my work capability assesment (WCA) was October 2009 and my ESA decision that I was fit to work made December 2009. I appealed this decision and my ESA assesment phase was re-instated with my appeal tribunal held in June 2010 where my appeal was disallowed

 

I heard nothing following this tribunal so contacted them last week and I was told I was in a backlog, but they pulled out my case and my ESA was stopped last week with effect from the tribunal date in June

 

I was advised by CAB to make a new claim as it was over 6 months since my last WCA but this was immediately turned down. In their view the 6 months time rule dates from when the last decision was made by them ie the appeal tribunal. This is contrary to views expressed on here and DWP web guidance

 

I challenged this (politely) to no avail, and was told the "overpayment" since June would be subsequently recovered. I have also had my Mortgage and Council Benefit stopped from the tribunal date and presume they will want to recover their "overpayments" too

 

The dilemma is do I challenge this decision during which time I will get no benefit or apply for JSA and risk not getting it as I am not fit to work?

 

Advice much appreciated

 

What an absolute load of b****cks!!!

DWP have been trying this [problem] for quite a while now in various BDC's, (have a look at some of the postings put on 'Rightsnet'). The 6 month rule runs from the date of the letter that the DM issued saying that you 'fit' following your medical. As that was in or about Dec09/Jan10, you have now served your 'time' You only need to worry if it is under six months, in which case, your ailment has to be either worse than what it was or it is a new ailment.

 

Ask that a manager from your BDC rings you and you point out the error of their ways. They MUST accept a new claim!! Then your assessment rate payments will start again

 

That will take time and obviously you will be out of money. Have you a nice GP? If so ask him/her for a new sick note, making sure that what he/she either puts down a new illness or that your current illness is worse. Send that in with a new ESA1 to start a new claim.

 

As regards the 'overpayment'. I cannot see for the life of me that you are anyway liable for it. It seems that they have continued to pay ESA since the Tribunal date until last week. Not your fault - theirs for letting it get to that stage. If I was you and they did try to collect, complain strongly. (They can't back date a decision because of their staffing problems and expect you to pay for it.)

 

Or you could claim JSA. They cannot use that against you as you have to have an income and that was the only reason you claimed it. Make sure you restrict your availability for work because of an illness - from what I remember, you can restrict it to work just 1 hour in a week - but don't quote me!!

 

Me, I would giving the DWP - ESA, a very hard life until they rectified their misunderstanding of the Regulations.

[Mutton Jeff]

Thanks for all your advice, I have a Docs appointment first thing in the morning to discuss this and will then be contacting the DWP manager to discuss this

[Bulbie]

The DWP may not be supposed to use the fact you claim for JSA against you, but they WILL use it against you. They will say oh I see you applied for and got JSA on this date... now you're telling us you have been unfit for work since this date... so how is it you can manage to be fit enough for work to receive JSA? Them telling you you can "safely" apply for JSA and nothing will happen to you is a load of toffee.

[GRUMPYOLEMAN]

Hi, yes I went down that line after a telephone call from the BDC asking about my voluntary work & small amount of self employment (work on my laptop for about 6 hours a week). They suggested that I should be claiming JSA NOT ESA, despite being signed off sick. So I did, they cancelled my ESA claim forthwith, and I went to the JC+ for an interview. I have to laugh at this, they told me that I'm not fit enough to claim JSA and should be claiming ESA!!!!

 

So I did, but I had one hell of a job convincing them that the claim was genuine. They even suggested that my GP may be investigated for issuing clearly incorrect sick notes. They said that no one would ever claim JSA if they were genuinely sick!!! And no record of the telephone call they made to me in the first place could be found. I was without any money for 10 weeks whilst they decided which benefit I should be on.

 

So yes - tread with care, great care when even thinking about JSA - they will use it against you.

[Mutton Jeff]

An update:

 

I got the local Unemployed Workers Centre (UWC) on the case and they have spoken to the decision makers in the 2 offices that they deal with and they have both confirmed that since the legislation changes on 28th June the 6 month period for a re-claim to be valid nows run from the tribunal date (June) not the Decision date (Dec 09) following the Work Capability Assesment (Oct 09)

 

Conspiracy theory - Were they waiting until the legislation changes came into being before contacting me and was that why after 7 weeks following the tribunal I had heard nothing from them?

 

The UWC told me I have now have 3 options:

- to claim JSA - I'm not going to do this for the reasons Grumpyoleman states above and my GP statesemphatically I am not fit to work

- to ask my GP to confirm my condition is worse - when my wife said it was yesterday she said "of course it will be" so hopefully this will do the trick

- if it doesnt, claim couples benefit on my wife's ESA until I can claim again in my own right 6 months on in December

[speedfreek]

both confirmed that since the legislation changes on 28th June the 6 month period for a re-claim to be valid nows run from the tribunal date (June) not the Decision date (Dec 09) following the Work Capability Assesment (Oct 09)

 

Say what! seriously say what??????

 

Are you sure about this? I heard that they were trying this on but haven't heard anything about a change on this scale?

 

I'm off to investigate

[Bulbie]

OP - The fact that your wife is on ESA also may also be used against you at some stage, if it hasn't been already. They will, quite simply, use the logic one of them being sick? Ok maybe yes. But the both of them being too sick to get JSA but not too sick to work? Yeah right!

 

Grumpyoldmen's experience, as well as my own, is sadly all too common right now, so I'll back him when I say do not for the life of you apply for JSA if you want to keep applying for ANY disability benefit. No matter HOW badly you need the money. After all, that's what they prey on. The fact that we need the money, that's the trick to "catching us out".

[speedfreek]

Investigation complete and it's not good news I'm afraid

 

28 Jun 2010 ... DWP guidance issued in February 2010 covers the payment of ESA pending an appeal ... The amending regulations omit regulation 6 of the ESA ...

http://www.cpag.org.uk/cro/wrb/wrb216/ESA_appeals.htm

 

This is the bit if I'm reading it correctly

 

The amending regulations omit regulation 6 of the ESA Regulations, which extended the assessment phase until an appeal was determined. Regulation 147A provides that limited capability for work cannot be determined until an appeal has been determined which extends the assessment period to that date in accordance with regulation 4.

 

So if I understand this correctly? From the 28th June 2010 the 6 month clock starts ticking from the final LCW decision be that by a DM or a tribunal at appeal :idea:

[speedfreek]

or is it now the opposite???

 

http://www.rightsnet.org.uk/forums/viewthread/254/

 

I give up on this point anyone else understand it?

[happyhamr]

hellow speedfreek. They just keep changing things(government/ dwp) , making it harder for everyone. they confuse,mislead "change goalposts"so that people think(not all of them), "what the HELL" is going on. they say that they are going to make things clearer to understand(no more "red tape") ,,,,,,"DREAM ON".......

"what a NIGHTMARE"