ESA appeal allowed but now working and at college? Backdated pay or not?

[crazygirl90]

Hi! You may remember me, I posted about a year ago, about my ESA appeal etc, I have Asperger's and ADHD.

In a nutshell, I went on ESA in April 09, medical in October 09, heard back in Feb 2010 saying I only scored 12 points, appealed with all my effort, heard back saying it was still no and it went to the tribunals service.

 

Well in July, I got a job (and obviously by then I hadn't heard anything from tribunal people). 4 hours a week at a cattery, when it went full time in the summer I came off ESA and claimed Return To Work Credit. Then in September I went back to 4 hours a week but then started college, I claim ALG £30 per week. I'm sure when I contacted JobCentre Plus to come off ESA, that they said the tribunal etc will be cancelled, blah blah.

 

Well today, I got a letter from the tribunal people in Sutton, informing me the appeal is allowed, that I clearly scored over 15 points. Presumably they read my information and based their decision purely on that, as I didn't have a hearing. It doesn't state if I should have been in the work-related or support group. It just says that I should have been entitled to ESA from 13th Feb 2010 (the date that the medical people decided I didn't score enough points etc). Well I'm not owed any basic rate ESA from that date, because when I recived the ATOS letter and phoned JCP, they said if I appeal my ESA will start again, and it did, until I came off it when I went full-time obviously.

 

So my situation is...I heard back about the medical, appealed, lost, so appealed to tribunals service, got a job...then got told my appeal is allowed.

 

So my main concern/question is...

 

1) Why does the appeal not state if I would've been in the work-related group or the support group

 

2) If they did decide which group (in my case probably the work-related group, which I believe is an extra £30 odd a week)...well, I would have been receiving that extra money from week 14 until the day I came off ESA, so presumably I will have that extra money backdated to me. But seeing as I am now off ESA will I receive that backdated pay? I mean, a decision has been made by the tribunal people that I did score more than 15 points, it's not my fault that the whole thing took so long and that I came across a perfect, suitable job (only a few hours and working with animals, so no customers to face etc, and animals are my specialist subject)!

But on the other hand, they wouldn't need to decide which group to put me in, because I'm not on ESA anymore. I'm assuming a copy of the letter goes to JCP...so surely they'll read it and think "Ok fine but we don't need to worry about what group she would have been in because she's not on ESA anymore."

 

Does that make sense?

 

BUT then as my brother pointed out - if they do think like that, well it's like they're penalising me, when it's their own fault for taking so long/having useless medical staff do the assessments!

 

Help??!

[speedfreek]

This is from February 2010 so if it hasn't changed (and I'm sure somebody else will correct me if it has) then iIn a nutshell yes you will be paid all arrears up to & including the day before you ended the ESA claim.

 

Have a read of this http://webarchive.nationalarchives.gov.uk/+/http://www.dwp.gov.uk/docs/m-07-10.pdf

 

2. the award of ESA ends before the appeal is heard

the claimant cannot be re-awarded ESA where the FtT overturns the original

disallowance. However, the DM should make determinations about LCW and LCWRA

as in paragraph 27 and award arrears for the period up to the end of the second

award, in addition to any arrears due as a result of the FtT’s decision.

 

Example

Kate’s award of ESA is disallowed from 6.10.09 following application of the WCA. She

makes an appeal and is awarded ESA. Kate sends in a final medical certificate from

her GP who considers her to be fit for work from 9.12.09. She claims and is awarded

JSA from the same date. The ESA award ends after the DM treats Kate as not having

LCW from the date she is awarded JSA, and supersedes to end entitlement.

On 4.5.10 the FtT allows Kate’s appeal, finding that she has LCW but does not have

LCWRA. Arrears of the WRAC are due from week 14 of the original award up to

5.10.09. The DM revises the second award of ESA to award the WRAC for the period

6.10.09 to 8.12.09.

 

Same principle for starting work and ending the claim if that makes sense?

 

Also I'm sure that you should recieve back pay dated to either the start of the 14th week of the ESA claim or the date of the medical assessment (which ever came later) and not the date of the decision. As I say I'm un sure of that so if somebody else could comment/confirm that I'd be grateful

 

One other thing are you sure the letter is from the Tribunal Service or is it from the DWP/JCP reversing their decision? It's not important it's just a lot of people are saying incorrectly that they've won their Tribunals when if fact it's the DWP making the decision on reconsideration.

Edited January 20, 2011 by speedfreek

[honeybee13]

Too much or too little coffee this morn Martin? As I'm truly flummoxed & bamboozled as to the meaning of this post. Are you Boris and is Wiff Waff coming home

 

I'm completely confused now. Had a busy 24 hours and no time to follow the news. As for Boris and Wiff Waff?? [confused smiley thingy-where's it gone?]

 

My best, HB

[speedfreek]

I'm completely confused now. Had a busy 24 hours and no time to follow the news. As for Boris and Wiff Waff?? [confused smiley thingy-where's it gone?]

 

My best, HB

 

Boris Johnson declares Wiff Waff is coming home

[MARTIN3030]

Yes sorry.

It was EMA not ESA.

[honeybee13]

Oh right, I'm not so out of date then.

 

HB

[crazygirl90]

Thanks for your reply, speedfreak

 

I'm a little confused though! Are you saying that I should get backdated pay from week 14 up until when I came off ESA? By backdated pay I mean the extra money from being placed in either the work-related or support group. I am not owed any basic rate ESA.

 

And yes the letter is from the Tribunals service, it says Sutton Tribunals and stuff on it.

[speedfreek]

Are you saying that I should get backdated pay from week 14 up until when I came off ESA? By backdated pay I mean the extra money from being placed in either the work-related or support group. I am not owed any basic rate ESA..

 

In a nutshell yes.

 

Although they may try and only back date it to the date of the medical assessment. The rule is ESA is paid from week 13 onwards except where no medical assessment has taken place. So if your medical happened after week 13 then it's that date (of the medical) which is used for the back pay calculation. Reasoning being that ESA can not be awarded without a medical assessment (their words not mine) so if that falls after week 13 then ESA (with the premium) is only payable from that later date of the medical.

 

If they do do this and the reason for the delay (as your medical was week 32) was down to ATOS or the DWP/JCP delays e.g. failing to provide/cancelling/rescheduling of medical assessment appointments (basically anything caused by there failure, so you re-arranging etc would not count) then you should consider a complaint. It will take time and persistence but worth a punt if you think you've got a strong case.

 

See how it goes first as they may back date to week 14. If not then the option above is open to you but we can deal with that if it happens.

[crazygirl90]

In a nutshell yes.

 

Although they may try and only back date it to the date of the medical assessment. The rule is ESA is paid from week 13 onwards except where no medical assessment has taken place. So if your medical happened after week 13 then it's that date (of the medical) which is used for the back pay calculation. Reasoning being that ESA can not be awarded without a medical assessment (their words not mine) so if that falls after week 13 then ESA (with the premium) is only payable from that later date of the medical.

 

If they do do this and the reason for the delay (as your medical was week 32) was down to ATOS or the DWP/JCP delays e.g. failing to provide/cancelling/rescheduling of medical assessment appointments (basically anything caused by there failure, so you re-arranging etc would not count) then you should consider a complaint. It will take time and persistence but worth a punt if you think you've got a strong case.

 

See how it goes first as they may back date to week 14. If not then the option above is open to you but we can deal with that if it happens.

 

Thanks for explaining that, I understand now

 

Well in terms of the medical asessment being so late, would receiving the questionnaire late be a fault of theirs too? I don't remember when I received it and as I didn't think I would need any of it, threw out most of my ESA paperwork etc. I do know my claim started on 11th April, so the start of week 13 would be 4th July. Now July sticks out for me, whether thats the month I received the questionnaire or the deadline for sending it off, I can't remember. See I was on ESA before in November 09 - March 10, when I got a job. I filled in a questionnaire and had a medical booked for April, which I obviously got cancelled due to me working and coming off ESA. I left that job in April, so re-applied for ESA, on the phone they said it wasn't a rapid reclaim but something similar. So, when I received the questionnaire again, on that new claim, I thought seeing as I was only off ESA for a month and it was a quick re-claim type thing, that I wouldnt need to fill out another one. Eventually I phoned and checked and was told I had to, and by that time it was getting near the deadline. I think I sent it off just on time but seeing as these things take days to reach them, it was probably late being received, so I did write an apology and explained why it was late.

 

So that is obviously my fault. Does anyone know the number of weeks you have to fill in the questionnaires? Because then I would be able to work out if I received it within the 13 weeks or not. If I received it late, even though I faulted by sending it off late, would they also be to blame for sending it late too?

 

To be honest, even though I would rather it be backdated to week 14, if it's going to be hassle then I'm happy with it being backdated from the medical assessment date, as I'm busy at full-time college etc, and I don't really have any way of proving/finding out if it was their fault that it was all done so late.

 

But for now I guess I just wait

[crazygirl90]

Hey again.

 

Very important question - how long will it take for me to receive the money? And will I hear from the JobCentre confirming it?

 

Also the date the tribunal was held was either 13th or15th December (I don't have the letter on me but it was around that time definitely) but it went to our old address, and there was a week where there was no redirection, so the lady who lives there sent it on to us but I didn't receive it until 20th January! So it's been 9 weeks since they allowed the appeal. I obviously know how slow the JobCentre can be . But I'm so anxious! Should I phone them? Part of me doesn't want to incase they turn around and tell me down the phone I won't get the money. But I feel if I don't phone then they might forget about it or be slow!

 

Oh and the JobCentre do have our new address (but we are still redirecting and haven't forgotten to renew it since!).

 

Please can someone reply ASAP if they know anything, it will be a huge relief for me

 

Thank you!

 

EDIT: Just to add, I've realised (after reading all the jargon on the internet) that I was put in the work-related activity group, because it says they went on to consider Schedule 3 but I didn't meet the descriptors, or something along those lines. I did some research and found out Schedule 3 is for people in the Support Group, so as I don't meet those criteria, I am in the work-related group I assume.

Edited February 16, 2011 by crazygirl90

[speedfreek]

You'll have to call and ask them.

 

I would have expected payment by now so you need to find out why this hasn't happened and push things a little.

[crazygirl90]

Thanks for your reply speedfreak

 

I will call them at 9 tomorrow.

 

I now have another concern.

 

There may be some confusion with which jobcentre the tribunals service contacted. The tribunals service as I said used my old address which was in Surrey and our postcode came under the Hastings centre. Now our postcode comes under the Worthig one.

 

So if the copy of the tribunals letter went to the Hastings centre...well they no longer deal with my claim. So I hope this doesn't mess things up! :O

 

Fingers crossed for when I call them I'll call the Hastings centre first, see what they say and take it from there.

[crazygirl90]

*Quick update*

 

Phoned the Hastings jobcentre, because thats the one that dealt with my claim for most of the time (I moved in July and came off ESA in July). And seeing as the tribunal letter went to that previous address I assumed they sent the jobcentre copy to Hastings too. Hastings have nothing at all, they advised me to call Worthing (where my current address falls under). They couldn't access anything as my claim is closed and they sent an email to someone else and got them to call me back. They called back and were very helpful. They said that Hastings really should have heard by now so I should send a copy of my tribunal letter to Hastings and ask them to deal with it as quickly as possible. One worrying thing though - she said that the tribunals service may have decided not to contact the JCP as I am now off ESA? This was exacrly my concern, them assuming that because I'm off it that nothing needs to be done!

However after she said that she asked how long I was on it for and when I told her it was since April 2009 she then changed her tune and said I should have some money owed to me. And she wished me good luck

 

So I've photocopied my letter and enclosed a seperate letter explaining everything, I shall get it posted today. Really hope this is the last of the complications! *Touches wood*

[speedfreek]

Hopefully.

 

You'll have to stay on top of this though! Non of this waiting around for answers you'll have to push.

 

See Antones' post in the other thread you posted on http://www.consumeractiongroup.co.uk/forum/showthread.php?294850-Won-ESA-Tribunal-2-months-ago-DWP-still-not-paying-up&p=3303137&viewfull=1#post3303137

 

You've done the right thing in sending off the TS appeal result letter to them. But you should not be having to do this at all as this is an error on their part. Things do go wrong but once they are informed of this they should go the extra mile to get this resolved as quickly as possible especially if it's their failure not yours.

 

Now you take no prisoners, accept no fobbing of, delays or excuses and escalate this as far as possible until it is resolved.