ESA appeal allowed

[ErikaPNP]

Backdated payments following tribunals usually take in the region of 2-6 weeks.

[ErikaPNP]

I''m with Antone on this one. DWP are sooo wrong here.

 

If someone just has limited capability for work(LCW), they're in the WRAG. If someone has limited capability for work related activity (LCWRA), they're in the Support Group. When regulation 35 applies, the claimant has LCWRA.

 

Jason, tell them to look up paragraph 42353 of the Decision Makers Guide - it's in chapter 42. It states:

 

42353 Claimants with the most severe illnesses or disabilities who have LCWRA will receive the support component without conditionality although they may participate in work-related activity on a voluntary basis if they so wish.

 

You meet this criteria - therefore you should be in the Support Group.

 

Here is a link to that piece of information.

[ErikaPNP]

Ok. When you phone, you do not get through to the ESA section. You get through to a call centre. If they still say you are in the WRAG, it is very important that you ask for a call back from an ESA Decision Maker. Stay at your computer when you make the call. Have this page open and read directly from my post.

 

You say: "I called yesterday about my claim because the tribunal have decided in my favour. During the call yesterday I was told that I was placed in the WRAG, but I think that's wrong. Can you check that again for me please?"

 

They will check. If they say you are in the Support Group, ask how much the arrears are that have been issued to you, and write it down. End the call.

 

If they still say you are in the WRAG, you ask for a call back from an ESA decision maker. If they won't do this, tell them that there has been a mistake in the way they have applied the tribunal's decision and you need to speak to a Decision Maker about this. If they still refuse, ask for a Team Leader and repeat.

 

When an ESA Decision Maker calls you back, repeat what you asked above. If they say you are in the WRAG,

 

you say: "My decision notification from the Tribunal states that regulation 35 applies. When regulation 35 applies, the claimant must be placed in the Support Group as they are deemed to have limited capability for work related activity. This is confirmed by paragraph 42353 in chapter 42 of the decision makers guide. Therefore, I should be in the support group, not the WRAG. Could you please take a look for me?"

 

If they still say you are in the WRAG,

 

you say: "Can you tell me if the DWP are appealing against the Trinunals' decision or otherwise disagreeing with it?

If they say yes, ask on what grounds and then write it down. Then thank them for explaining and end the call.

 

If they say no

 

you say: "I am acting upon advice. I will have to go back to the place that advised me to find out what to do next. Thank you."

 

and end the call

 

They don't know it but 'next', unless they have very good reason for refusing to implement the Tribunal's decision, we'll be writing a letter to your MP - I'll help you to do it. If at any stage they question you about regulation 35 or the decision maker's guide, it's perfectly ok to say that you don't know, that you sought advice and were told to put these things to them. You do not have to tell them who advised you - that's your business.

[ErikaPNP]

You should be getting £53.45 personal allowance and £32.35 support component. (The £26.75 is the WRAG component)

 

Did you get an ESA decision maker to call you?

 

Did you say what I said to say in my post? If so, what were their answers that I asked you to write down?

[ErikaPNP]

Has this changed recently? When I processed ESA, people under 25 who were placed in the WRAG or SG received the same personal allowance as those over 25. That was a while ago, as you know, so I could have outdated information.

 

Jason, they're still wrong and have incorrectly implemented the Tribunal decision. You referred to sanctions - did they say why a sanction has been applied?

 

Oh balls. You are absolutely right, Antone. The £53.45 only applies during the assessment phase for under 25's.

 

My sincered apologies, Jason. Now that you are in the main phase of ESA, you should be getting £67.50 a week personal allowance and £32.35 support component. If you have a sanction on your claim however it could be less.

 

Unfortunately I can't say what to do next because there are still unanswered questions. You really need to speak to a decision maker; the people at the contact centre are not trained, don't have your paperwork and cannot really answer anything beyond what is on the computer screen. When you phoned the second time, did they arrange for a callback tomorrow? If so, and you don't have one by 12pm, phone and ask for an 'escalation'. An escalation is when you have not had a call back when one has been arranged and they will have a manager arrange for someone to call you within the hour. If they haven't arranged for a call back tomorrow, phone the moment the lines open and absolutely insist (be polite but firm) that you get a call back from an ESA decision maker. Tell them you rang twice yesterday, they have applied the tribunal decision incorrectly and you would like it sorted out - only an ESA decision maker can sort it out, the contact centre cannot.

[ErikaPNP]

Nystagmite, I think there is a premium but I'm not certain about ESA and the premiums though I am aware of them in relation to other benefits. Antone would be the man to ask.

 

Normally as far as I go with ESA is getting the claimant an award, by appeal unfortunately! To that end, my familiarity mainly lies with the legislation concerning entitlement in itself. It took me long enough to learn about the criteria for ESA when it came out and it's only in the last couple of years I've been advising on it. Even now I frequently badger Antone and others when a complex ESA case appears here as I don't have the answers.

 

Jason's case is pretty straightforward in that he doesn't appear to have been placed in the group that the legislation says he's entitled to be placed in. But if there is an additional premium too then we need to be asking about that also, so thanks for bringing it up - and if anyone knows for certain if there is a premium, speak up!

[ErikaPNP]

You don't need to appeal the group - you have won your appeal and the right along with it to go into the support group. The jobcentre have no more say than the contact centre in your ESA claim - they, like the contact centre can only tell you what they can see on the screen in front of them.

 

As I said before, you need to speak to an ESA Decision Maker. That can only be acheived by getting a call back from the benefit centre, following the process I posted about before. Please call the number on your letters and ask for a call back from an ESA decision maker.

[ErikaPNP]

Something is far wrong here. The Tribunal don't say what group you go into - they'll either say regulation 35 applies or it doesn't. It's the regulation that determines the group. If the tribunal states in the claimant's notification letter that regulation 35 applies but they have stated on the DWP copy that it doesn't apply then it's an issue that the tribunal have to sort out, not the DWP as the DWP are supposed to act on the information that they get from the tribunal. I can't give you any advice until I know whether DWP are misunderstanding the tribunals paperwork, or the tribunal have made an error in their paperwork. I need to know what the problem is in order to solve it. That said, I'm very aware of the time contraints involved, and you only have two days left to request a statement of reasons from the tribunal. To that end, I think that you should write to the tribunal service explaining the situation and request a statement of reasons for their decision. There is a template below for you.

 

Your address

Your national insurance number

your case reference number

the date

 

Dear Sir/Madam,

 

Social Entitlement Chamber

Employment and Support Allowance Appeal Tribunal held on 22/12/2011

 

I attended a hearing at (enter tribunal location) on 22/12/2011 in regard to my appeal against a decision to disallow me Employment and Support Allowance. My appeal was successful and I have received my notification which states that regulation 35 of the Employment and Support Allowance regulations applies.

 

However, the Department of Work and Pensions are refusing to implement regulation 35 and informed me during a telephone conversation on 20/01/2012 that their copy of the notification from the tribunal did not contain this information.

 

I would therefore be grateful if you could confirm whether regulation 35 applies in my case, and provide a statement of reasons concerning the decision of the tribunal.

 

yours sincerely

your name.

[ErikaPNP]

You should send it to the address that is on the letter from the tribunal notifying you of their decision.