Confused with ESA claim

[Gemstar]

Hello,

I have tried to get an answer from the DWP but they keep saying the same old same old.

 

My problem is that whilst I am happy with waiting for my turn at the Tribunal Court (had my medical in December 2009 and appealed against the decision in Januray 2010), my health has since taken a nose dive.

Not only have my previous conditions deteriorated but I have now been diagnosed as having something else wrong with me.

I have a progressive disease which will, if I look at the statistics, result in my early death (anytime after 2011). In addition I have a worsening of a previous problem which is my mental health.

 

Having said that, what I cannot get an answer to is do I notify the DWP of my current condition which as I mentioned earlier, is now a lot worse than at the time of the medical and how do I go about doing it?

 

The DWP say that I must wait until my Tribunal has been heard, and if I fail, I should then make a new claim. They say I can't make a new claim based on what my problems are now as I already have a claim ongoing through the appeal system. They did however give me some hope in that I can ask the Court to consider my current health condition and give a ruling on that as well.

 

At the moment they say I am fit for work, which I am not.

 

I know I am looking at the worse case scenario, but what would happen if something happened to me before the hearing and I die? (high risk category of developing terminal cancer with a 5% chance of survival)

 

I can understand a constant illness but there does not seem to be a way of them keep reviewing my ESA claim as I get progressively worse.

 

Thank you

Edited September 23, 2010 by Gemstar

[speedfreek]

Hi

 

I've posted a response of what I think is right here http://forums.moneysavingexpert.com/showpost.php?p=36897172&postcount=9

 

I'd get that checked out/some advice from a local or national welfare rights group/CAB/charity as i could be completely wrong?

 

I wouldn't trust half the stuff posted on the MSE forums! There's some nasty pieces of work on there

[ErikaPNP]

In this case I can safely say that the DWP are talking rubbish. And very detrimental rubbish, as it happens.

 

When you are claming the assessment rate of ESA pending the outcome of a tribunal, it is actually in effect, a new award, and fully reviewable for changes of circs.

 

The tribunal cannot consider a deterioration or new condition because the appeal is against the circumstances at the time the decision was made. They cannot admit anything which relates to a deterioration of condition or a new condition, after the date of the decision.

 

It seems to me that DWP are not up to date with recent legislation concerning amendment to ESA.

 

Ask them if they are taking into consideration the amendments specifed within regulation 9 (15) of the Social Security (Miscelleneous Amendments) (No 3) Regulations 2010.

 

Paragraph (3) of regulation 9 (15) is quite clear in that awaiting the appeal outcome would not apply in this case, and the DWP need to make a new determination of limited capability for work.

[Gemstar]

Thank you for your replies. I can now understand what you are saying. (that is apart from the link - do people actually manage to read and understand that stuff?)

 

Should I download a new application form and send it to the DWP with the evidence?

 

Thanks again.

Gemma

[ErikaPNP]

I understand it fine but I'm rather used to reading up on the law for benefits and interpretating it for appeals. (and because it's the law, the DWP must follow it).

 

I've clicked on Speedfreak's link to have a look - this is probably easier to understand. It's the guidance that goes along with the law that I posted a link to. It's newly out this year so I'm assuming the DWP office that deals with your claim haven't been updated on it.

 

You don't need to re-apply. Write a letter, stating that your condition has deteriorated (enclose evidence of this - maybe letters from GP/hospital), and tell them that you have been trying to sort this out with them but have been advised by them that you need to await your appeal outcome. After telling them of this, state what is in the first quote below:

The advise that I must await my appeal outcome appears to be contrary to regulation 9 (15) of the Social Security (Miscelleneous Amendments) (No 3) Regulations 2010; I enclose a copy of the relevant regulation from that legislation, and highlight the specific part which I feel applies in my case. You may find the guidance memo available to ESA staff entitled "DMG 33/10", useful in considering my case. I believe that the detererioration of my condition is a relevant change of circumstances which ought to prompt a new determination of my limited capability for work.

 

I'm going to quote the relevant sections of the law and highlight the important parts in bold and in bold red for you below. Copy and paste it to a word doc (with the highlighted parts), print it out and enclose it with your letter.

(15) After regulation 147 insert—

“Claimants appealing a decision

 

147A.—(1) This regulation applies where a claimant has made and is pursuing an appeal against a decision of the Secretary of State that embodies a determination that the claimant does not have limited capability for work.

(2) Subject to paragraph (3), where this regulation applies, a determination of limited capability for work by the Secretary of State under regulation 19 shall not be made until the appeal is determined by the First-tier Tribunal.

(3) Paragraph (2) does not apply where either—

(a)the claimant suffers from some specific disease or bodily or mental disablement from which the claimant was not suffering when entitlement began; or

(b)a disease or bodily or mental disablement from which the claimant was suffering at that date has significantly worsened.

(4) Where this regulation applies and the Secretary of State makes a determination—

(a)in a case to which paragraph (3) applies (including where the determination is not the first such determination) that the claimant does not have or, by virtue of regulation 22 or 23, is to be treated as not having limited capability for work; or

(b)subsequent to a determination that the claimant is to be treated as having limited capability for work by virtue of a provision of these Regulations other than regulation 30, that the claimant is no longer to be so treated,

this regulation and regulation 30 apply as if that determination had not been made.

(5) Where this regulation applies and—

(a)the claimant is entitled to an employment and support allowance by virtue of being treated as having limited capability for work in accordance with regulation 30;

(b)neither of the circumstances in paragraph (3) applies, or, subsequent to the application of either of those circumstances, the claimant has been determined not to have limited capability for work; and

©the claimant’s appeal is dismissed, withdrawn or struck out,

the claimant is to be treated as not having limited capability for work with effect from the beginning of the first day of the benefit week following the date on which the Secretary of State was notified by the First-tier Tribunal that the appeal is dismissed, withdrawn or struck out.

(6) Where a claimant’s appeal is successful, subject to paragraph (7), any finding of fact or other determination embodied in or necessary to the decision of the First-tier Tribunal or on which the First-tier Tribunal’s decision is based shall be conclusive for the purposes of the decision of the Secretary of State, in relation to an award made in a case to which this regulation applies, as to whether the claimant has limited capability for work or limited capability for work-related activity.

(7) Paragraph (6) does not apply where, due to a change of circumstances after entitlement to which this regulation applies began, the Secretary of State is satisfied that it is no longer appropriate to rely on such finding or determination.”.

 

 

 

Hope this helps.

[Gemstar]

Thanks Erika,

 

That is fine. I see what you are getting at, the law has changed and DWP may not be aware of it.

 

I will do as you suggest, and enclose the evidence with the letter.

 

I presume that I will have to go and have another medical which does not give me any great feeling of possible success. I will no doubt be found still fit for work and have to appeal against that decision as well. What a crazy world we are living in!

 

Thanks once again, and I will keep everyone that has been so kind to me, updated with what happens.

 

Gemma

x

[ErikaPNP]

Yes, you may be sent for another work capability assessment to determine that you have limited capacity for work.

 

It's ironic, really. In every letter, a claimant is advised they must inform of a relevant change of circumstances which could affect the amount of benefit they get. If they don't report the change and end up with more benefit than they are entitled because of that failure to inform, they can be investigated for fraud. Here you are, trying to follow that advise by reporting a relevant change which could increase your benefit, and getting nowhere fast. Only in DWP.

 

Best wishes, Gemstar.

[Gemstar]

Thank you Erika once more. Yes it is crazy isn't it.

 

It seems to me that when I may be entitled to more benefit, the DWP can hide behind the fact that if I didn't know that I was entitled, then that is my fault, not theirs. And consquently lose money because I should have known and can't have it backdated.

 

I can understand their argument be it not for the fact that I have made countless telephone calls to their office asking for help and basically being told that there is no help for me, I will have to wait for the Court hearing and "it's not our job to explain what benefits I am or am not entitled to - that is your responsibility to find out and then make a claim for them".

 

Never mind I think I have it sorted now in my head due to your excellent help and advice.

 

Thanks

 

Gemma