ESA appeals and claiming again - a bit of advice please

[rankin123]

Hi everyone,

 

I've read through several threads and HB's very helpful sticky post, however I haven't been able to find an answer/advice for my particular situation. I'll lay out my case below:

 

Like a lot of people my mum failed her medical assessment, she got 0 points even though she uses a walking stick to get around, she suffers from severe scoliosis which affects her walking, sitting, every part of her daily life actually. As her carer I have the appeals form and I'm not sure whether to send them away for a tribunal hearing. My mum recieves DLA at the higher rate and I don't want this to be affected if she loses the ESA appeal. Can anyone answer the following for me:

 

1. If she loses the ESA appeal will this affect her DLA?

2. If she doesn't go to the appeals tribunal can she reapply for ESA? If she can, when can she reapply, is it 6 months?

3. If she can reapply after 6 months, when is this 6 months from? From the date she stopped the appeals process or the date they informed her of their decision to stop her ESA and started to recieve the appeals rate of ESA?

4. If she reapplys can this be for the same illness that she applied for in her previous application? Or does her condition have to have changed?

 

Sorry for all the questions, since I recieved news of the decision lots of things have been going round in my head, part of me wants to go to the tribunal to prove that my mum is severly ill but another part of me doesn't want to go to the tribunal because first they have made me and mum feel like we're lying when we're not. And second my mum is really worried about it already after failing the medical assessment, she even asked me whether she should stop taking her painkillers on the day of the hearing to perhaps try and prove to the panel that she is really sick...

 

As it will be nearly 6 months after the decision to stop my mums ESA I wondered whether it was really neccessary to go through the whole appeals process, especially if, in the worst case scenario she isn't successful at the tribunal she can't get ESA ever again, her DLA is affected and she is put through a lot of stress.

 

Thanks to anyone who reads this lengthy account, any help or advice would be really really appreciated.

 

Thank you

[rebel11]

Hi rankin

 

Welcome to CAG

 

The guys will respond as soon as they are available.

[speedfreek]

Don't even think about not handing in those appeal forms!

 

I take it they ignored all your evidence and based the decision solely on the single report by ATOS?

 

If you do not appeal and challenge this report, then it will become 'factual' evidence to be brought up when you apply for (or renew) any benefits.

 

So whilst it will not affect your mums present DLA award, when she comes to renew it... oh look this ATOS report says she's well, nowt wrong with her and it wasn't challenged so it must be right!

 

Plus it's £65 as week whilst you appeal (which is non refundable \o/ ) with the added bonus of £30 a week back pay lump sum once you win

 

Can't remember the exact rules on when the 6 months start... it's either the date or the original decision or the appeal was lodged?

 

Hopefully somebody else can help with that as it escapes me atm.

 

The 6 month rule does not apply where the condition changes or worsens. You can (& should) insist on making a new claim; although the DWP may say different (& they are wrong we've proved that here a few times) the regulations say that it is classed as a new claim (not linked to the old claim & both (or even more) can run concurrently & independently) & as such and a new separate decision on entitlements has to be made.

[RaeUK]

Not 100% on this but I believe the 6 months is from the date the ESA was stopped. It's a win / win scenario at the moment. They give you Null Points. You appeal. The appeal is not heard for 6 to 9 months due to the backlog. Win your appeal all is well. Lose and reapply for ESA boarding the merry-go-round once more ....

[Bustard]

http://www.bbc.co.uk/ouch/messageboards/F3611783?thread=7108320 ATOS Origin

[rankin123]

Thanks for your reply, your comments are really helpful, I have a few responses to your message...

 

Don't even think about not handing in those appeal forms! So we should defo appeal? Do you know what happens if she loses the appeal, are her other benefits immediately effcted? I need to make a decision this week as we have recieved a reminder giving us another 7 days.

 

I take it they ignored all your evidence and based the decision solely on the single report by ATOS? Yes they did, I wrote a letter explaining which parts of the assessment I thought were wrong, my letter was over 4 pages long, but they didn't amend the decision, this letter will be part of the pack of info the tribunal will read.

 

If you do not appeal and challenge this report, then it will become 'factual' evidence to be brought up when you apply for (or renew) any benefits.

 

So whilst it will not affect your mums present DLA award, when she comes to renew it... oh look this ATOS report says she's well, nowt wrong with her and it wasn't challenged so it must be right! Do you know of people that have had this happen to them? This is exactly what I'm afraid of happening, but then I'm also afraid of going to the tribunal and not winning, affecting her DLA and stopping her ESA.

 

Plus it's £65 as week whilst you appeal (which is non refundable \o/ ) with the added bonus of £30 a week back pay lump sum once you win

 

Can't remember the exact rules on when the 6 months start... it's either the date or the original decision or the appeal was lodged?

 

Hopefully somebody else can help with that as it escapes me atm.

 

The 6 month rule does not apply where the condition changes or worsens. You can (& should) insist on making a new claim; although the DWP may say different (& they are wrong we've proved that here a few times) the regulations say that it is classed as a new claim (not linked to the old claim & both (or even more) can run concurrently & independently) & as such and a new separate decision on entitlements has to be made.

[rankin123]

Thanks for your comment. I'm starting to think I should go ahead with the appeal...If we lose the appeal do you think this will effect her DLA? I guess if we lose we can appeal to the higher tribunal, or at least this shows the DLA that we fought the decision and like you say we can reapply

[speedfreek]

Do it! You know it makes sense

 

Instead of worrying about what might happen try and enlist some help and concentrate on getting your evidence gathered for the appeal.

 

Also don't miss those deadlines.

 

As for DLA/ESA they are separate benefits with separate criteria for each to be awarded. Therefore what happens with one shouldn't have any effect on the other. The ESA appeal won or lost will have no baring. So the DLA is safe.

 

Yes I have heard of people who have had ATOS ESA reports used against them when applying for DLA. That's just the DWP being very naughty though as they shouldn't be (see above). As long as you provide enough evidence for the DLA and put the flight of fantasy ATOS report to bed you'll be grand 8)

 

On the letter often the review is not done by the DWP until it's almost about to be heard. Some people have even turned up on the day for the tribunal to be told it will not be going ahead as they've won and to go home.