ESA appeal, reclaim and possible GP collusion

[stalin's dead]

First of all apologies for another thread from me but I have my ESA appeal next week and I need to finally clarify certain issues and would appreciate any advice or indeed thoughts:

 

1) I have epilepsy and my appeal is for this condition

2) On my final sick note (3 months ago) prior to my appeal (next week) the GP, without any discussion, wrote depression as well on my sick note which he'd never done before. I found this strange but didn't question it at the time but it's been bugging me. Depression is a bed-fellow of epilepsy anyway

3) This second condition on my sick note triggered another WCA assessment with ATOS ( I wasn't aware at the time that this is what happened when another condition was noted). I attended another ESA medical for this second ailment which I didn't know I had too do but never rec'd a decision from this one. I assume this would also be covered at the appeal.

 

Now after reading other websites and I could be wrong here but because a new condition (depression) as been noted by my GP and recorded on my last sick note the 6 month ruling would prevent me from making a new application for ESA. Is this correct? If it is then I am wondering if the GP was aware of the 6 month rule and a new ailment and noted a new ailment to prevent me from submitting a fresh claim for ESA in the event of a failed appeal. I was also wondering if the DWP advised him to do this?

 

Is anyone aware of GP/DWP collusion on these matters because I could end up in the sh*t on the 6 month ruling simply because my GP noted a new condition on my sick note which triggered another WCA.

 

If I fail my appeal then I am well and truly up the creek without a paddle and all because of my GP noted a new condition of depression.

 

Note - I was notified of my first failed medical around 9 months ago.

 

The above scenario only occurred to me around 30 mins ago after reading another website. Ignorance of the ESA rules could cost me my future

 

many thanks indeed and sorry for another thread from me

 

cheers

[watchinginvestigation2011]

Epilepsy and depression, you are right there, hope your appeal goes well for you next week xx

 

Someone should be along to answer you hopefully soon

[doktorjohn]

This may be of little use but it seems to me that depression does not merit any points with ESA anyway.

 

Maybe the behavior caused by depression would count for something.

 

I do see your dilemma but I don't have the answer. Sorry.

 

I know that I won't qualify for ESA when I am migrated onto it from IB with my depression and sciatica.

 

- dj

[RaeUK]

I'm liking the conundrum, Stalin, but I wouldn't worry. There may well be a cross fertilisation between epilepsy and depression but they can also be stand alone problems. My view would be - should the tribunal result in a negative verdict - that you can reclaim for epilepsy. And that is the route I would go down ...

Rae

 

EDIT: Oh, and I can't believe for one second that a GP would collude with the DWP!

[leemack]

I'm hoping that you chased up the second decision and appealled it - if you haven't you need to do it asap. I may not be right about this, but it occurs to me that otherwise the decision in your upcoming appeal - if positive, may only be applicable until the date of the most recent decision. If you appeal very quickly and contact the tribunal service you may be able to get them both heard at once - though this is only a good idea if your conditions were same at the two medicals - ie you were depressed anyway, and the doc just added it in.

 

I don't think its a GP collusion. Most of them really don't understand even the basics of how the benefits system works. But I would be suspicious of the dwp jumping on this to give you another medical and then not giving you a decision - preventing you from appealling, and also delaying any new esa claim should your appeal fail.

[mojo2000]

Stalin, long time reader first time poster. Sorry to hear you have Epilepsy.

 

The ATOS "nurse" stated to X, you would be amazed by the amount of people you see here who say they have Epilepsy, but take no medication and have no medical history.

 

You are talking about your GP, why are you not talking about your Consultant Neurologist(or his report). If you in deed have depression, I would expect your Neurologist to pass you onto a Neuropsychologist.

 

Your GP report (if thats all you have)needs to be detailed, and you may need to pay for it.

 

Mojo

[achvour]

This may be of little use but it seems to me that depression does not merit any points with ESA anyway.

 

Maybe the behavior caused by depression would count for something.

 

I do see your dilemma but I don't have the answer. Sorry.

 

I know that I won't qualify for ESA when I am migrated onto it from IB with my depression and sciatica.

 

- dj

 

Could I ask therefore why you are claiming IB if you know that you would not get ESA with your condition?

I thought that if you are ill and unable to work you are ill and unable to work no matter what benefit you claim under.

[stalin's dead]

done that already. Neuro-report submitted months ago

[leemack]

Could I ask therefore why you are claiming IB if you know that you would not get ESA with your condition?

I thought that if you are ill and unable to work you are ill and unable to work no matter what benefit you claim under.

 

The criteria are different! Basically, with ESA the goalposts were moved further away. Just because the government want x amount of people off of sickness benefits, doesn't mean those people magically become capable of work. So what the govn did was redefine what being capable of work meant - at the moment it means 'not dead'.

[speedfreek]

I'm hoping that you chased up the second decision and appealled it - if you haven't you need to do it asap. I may not be right about this, but it occurs to me that otherwise the decision in your upcoming appeal - if positive, may only be applicable until the date of the most recent decision. If you appeal very quickly and contact the tribunal service you may be able to get them both heard at once - though this is only a good idea if your conditions were same at the two medicals - ie you were depressed anyway, and the doc just added it in.

 

I don't think its a GP collusion. Most of them really don't understand even the basics of how the benefits system works. But I would be suspicious of the dwp jumping on this to give you another medical and then not giving you a decision - preventing you from appealling, and also delaying any new esa claim should your appeal fail.

 

May not have too there's an interesting discussion "WCA pending ESA appeal" top of the ESA section on the rightsnet forums Lee you're probably in best position to understand this DWP techno babble

 

They seam confused by the matter but this should give you some hope.

 

However, it’s academic here because, whilst both clients sat new medicals pending their appeals, those appeals were dismissed. As stated earlier, the DM would appear unable in those circumstances to make new WCAs based upon the new medicals because he is bound to end the awards of ESA pending appeal under Reg 147A(5) rather than under Reg 19(2).

 

The gist from what I can gleen is that the fit note may have caused a DM to call you in for a new WCA to see if there was a change of circs. It may also have to do with them requiring more evidence - so nothing to to do with the new note.

 

Either way this new WCA can not be used to make a determination so the time limit is still from the original WCA decision.

 

It's way over my head though so hopefully Lee can make heads or tails of it

[stalin's dead]

I suppose the crux of this confusing 6 month rule revolves around what is a 'decision' and what is a 'determination'? I have had two WCA's. First for my epilepsy (tribunal tomorrow) which I was found 'fit to work' and the second was for my depression (have had nothing at all from ATOS for this so I assumed it was a determination NOT a decision). The tribunal will focus on my epilepsy and ignore the depression.

 

So the first WCA was a decision which triggered actual consequences and the second WCA was a determination with no obvious consequences, it seems!

 

If my appeal is disallowed then I shall reclaim ESA based from the date of my first failed WCA decision which was around 10 months ago now.

 

This 6 month rule is causing absolute confusion among many claimants. Even DWP staff have no idea what's happening

[leemack]

Don't assume that just because you haven't received anything, that a decision hasn't been made. And a WCA is supposed to assess everything, not just one condition - especially as epilepsy and depression are interrelated. I would want to be damn sure that the decision wasn't 'you have scored x points under the WCA' rather than 'our determination is there has been no worsening of condition'. Especially as the first option would mean that any successful result at appeal would end at the date of the second decision, meaning all you would get is a backdated payment and no ongoing award.

[leemack]

ok, bad news. Thought I'd look this up just to double check what the DWP guidance said.

Basically, had you been found to have limited capability for work, you would have started receiving an increased award following your latest medical. As you haven't this means you were not found capable of work. The bad news is that the regs state that this decision is suspended until after the appeal decision, but that even if the decision is positive at appeal, that although you will be awarded arrears, it will only be up until the date of the change of circumstances. Here is an example from the DMG:

 

Lewis’s entitlement to ESA ends after 18 weeks following application of the WCA, and he makes an appeal. He becomes entitled to ESA again after submitting medical certificates. Later he notifies that his condition has deteriorated, and is referred for the WCA. The DM determines that he does not have LCW, but does not supersede the decision awarding ESA after the appeal was made, as the appeal has not yet been heard. The FtT allows the appeal, finding that Lewis should be placed in the WRAG. The FtT decision is implemented to pay arrears of the WRAC up to the date of the decision under appeal. The DM revises the decision awarding ESA after the appeal was made to award the WRAC, and then supersedes the decision as revised to take account of the LCW determination, and disallows ESA from the date of the supersession decision1.

In your case the supersession date would be the date of decision after the second medical. I'm really sorry. And the crappy thing is that you can't appeal yet as the decision hasn't officially been made.

 

The only way I can think of to try and counteract this, is if you can prove you suffered depression at the time of the first medical, and include the evidence at your appeal - then use the points awarded at appeal, plus evidence from your doctor that there has been no improvement to try and get the decision changed before a second appeal.

[leemack]

Of course while appealing again, you would still get paid the assessment rate.

 

So in conclusion, if you win the appeal, failing a new WCA is a very bad thing as it ends your award made by the tribunal and you have to appeal the second WCA decision.

 

If you lose the appeal, one of two things applies, and I'm still trying to figure out which is right:

 

1) the tribunal decision gets preference, the second WCA becomes void, and you can reapply and be paid assessment rate while awaiting a new WCA as the last decision on your claim is after the first WCA. (you can in fact reapply when you like if your claim has been closed - only if its within 6 months they just don't pay you till you pass a WCA.)

 

2) The tribunal decision is made and then the second WCA decision is made and you can appeal the second decision.

 

I think that the first option is probably right as if the appeal fails, there can be no change of circs, therefore no second decision. But I'll do some more reading just to be sure.

Edited April 26, 2011 by leemack

[stalin's dead]

Well, just back from the appeal and it was disallowed so therefore I failed in my appeal.

 

Not sure how to move forward now.

 

Obviously need to speak to DWP but not sure what my options are from here. Will speak to welfare rights and see excactly what my position is going forward

 

Can i request a statement of reasons because they didn't tell me how many points I did get. They were very open and listened to my arguments but to no avail

 

gutted cos know im in deep sh*t

 

Would appreciate any advice or direction

 

appreciated

 

SD

[leemack]

Well, just back from the appeal and it was disallowed so therefore I failed in my appeal.

 

Not sure how to move forward now.

 

Obviously need to speak to DWP but not sure what my options are from here. Will speak to welfare rights and see excactly what my position is going forward

 

Can i request a statement of reasons because they didn't tell me how many points I did get. They were very open and listened to my arguments but to no avail

 

gutted cos know im in deep sh*t

 

Would appreciate any advice or direction

 

appreciated

 

SD

 

Really sorry to hear that SD.

 

You can ask, in writing, for a statement of reasons and transcript of proceedings. The tribunal need to justify why they didn't give your evidence weight, and if they don't this can be an error of law.

 

In the meantime, make a new claim. As the appeal failed, there is no decision from the second WCA, so you will be past the 6 month point, and once the claim is processed should go back onto the assessment rate.

[stalin's dead]

leemack

 

thank's for that mate

 

will speak to DWP and get SOR etc

 

cheers

[stalin's dead]

I've just been told by the DWP that I can submit a new claim for ESA and the 6 month rule applies which is a huge relief. I messed up the appeal so next time i'm gonna get welfare rights/CAB assistance and do it properly

[leemack]

I've just been told by the DWP that I can submit a new claim for ESA and the 6 month rule applies which is a huge relief. I messed up the appeal so next time i'm gonna get welfare rights/CAB assistance and do it properly

 

What do you think you messed up SD? If you don't mind me asking?

[stalin's dead]

What do you think you messed up SD? If you don't mind me asking?

 

Reasons:

 

I went alone - should have taken someone with me - being alone implied indepedence and awareness of hazards

In my GL24 I only highlighted 3 areas were i believe i should have had scored points(those 3 would have given me 15 points). I should have highlighted far more than 3

I was far too confident in demenour

I was far too cock-sure

They said I didn't fulfill the descriptors which I thought was crap. If i'm having seizures confirmed by a neuro report then what else do the tribunal need to award me at least some points..it was very poor indeed

I was far too articulate fro my own good which suggested confidence, ability, high self-esteem etc

IN fact my whole 'performance' must have seemed in complete contradiction to what I had wrote in my ESA50

 

I honestly believe you have to be a good actor..epilepsy is hidden so you appear on the surface to be in rude health..wrong, they dont see you on the floor unconscious

 

next ESA application will be perfected and fine tuned to create the right impression because obviously having active epilepsy appears not to be enough for them

 

how wrong i was

[leemack]

It will be interesting to see what your SOR says.

 

But yes, attending alone can be an issue they use as an excuse for not believing you - but it depends on what else you stated on your ESA50/GL24/submission, as to whether this can be challenged. Was it just epilepsy and associated issues (ie incontinence), or were there mental health issues too?

 

Did you do a submission? - these are really important, and a good submission can go a long way.

Edited April 27, 2011 by leemack

[Nystagmite]

Were you ever asked how you got there? Because if you said for example, that you walked / got the bus there and still had problems, (ie, stepped out into the road as a car was coming) that won't go against you. I had a DLA tribunal just over a year ago and stated that I managed to, despite careful planning, get lost on the way there.

[stalin's dead]

what do you mean a 'submission'?

 

thanks

[stalin's dead]

Were you ever asked how you got there? Because if you said for example, that you walked / got the bus there and still had problems, (ie, stepped out into the road as a car was coming) that won't go against you. I had a DLA tribunal just over a year ago and stated that I managed to, despite careful planning, get lost on the way there.

 

-

 

no, they didn't ask me how i got there which i found odd but then as an epileptic im not braindead imbecile.i can actually navigate my way to places!! It's when im unconscious on the floor that im not that capable! Unconscious people are not up too much!!

 

pathetic really but ive paid my taxes for 24 years and im not walking away with my tail between my legs.

 

I need the state's support NOW and the state is doing its best to deprive me..well, im not gonna accept that bull****

 

i will carry on

[Nystagmite]

what do you mean a 'submission'?

 

thanks

 

There's a sticky on this board where one of the mods (Erika?) wrote a submission. It's basically a letter to the tribunal stating you believe you meet x criteria and why you believe this to be so.