On ESA for more than 13 weeks - did the law change?

[Nystagmite]

I can't find this anywhere:

 

Someone I know claims that if you're a part time student, you're exempt from the ESA medical. That can't be right, can it? I've looked through various websites which state the conditions for the exemption from the ESA medical and there's no mention of being a part time student.

[flumps1976]

Treated as having limited capability for work

 

No-one is exempt from the medical assessment for ESA. All claimants have to undergo at least one element of it. But there are a few circumstances where a person can be treated as having limited capability for work. They are where the person is :

• terminally ill
  
• receiving chemotherapy (unless it is via oral medication)
  
• under notice as a carrier of, or had contact with, an infectious disease
  
• pregnant and there would be a serious risk to health of the claimant or her baby if she did not refrain from work
  
• pregnant, entitled to Maternity Allowance and within the Maternity Allowance period
  
• pregnant or have recently given birth, not entitled to Statutory Maternity Pay or Maternity Allowance, from 6 weeks before the birth to 2 weeks after baby is born
  
• a hospital inpatient
  
• receiving treatment by way of haemodialysis, plasmapheresis, radiotherapy or total parenteral nutrition, in any week when the person receives treatment or has a day of recovery from treatment. In the first week of any such treatment, claimant is only treated as having limited capability for work if they have:
  
  • 2 days of treatment; or
    
  • 2 days of recovery; or
    
  • 1 day of treatment and one day of recovery
    
  • The days do not have to be consecutive
    

• People likely to start chemotherapy within 6 months. These claimants will also be treated as being unfit for work related activity and will be in the support group
  
• People attending residential rehabilitation for drug or alcohol problems
  
• People who satisfy either of the “conveying food or drink to the mouth” or “chewing or swallowing” descriptors in the limited capability for work related activity test
  

I don't deal with his aspect in my job at the JCP but found this bit of information and it states who will be classed as having a limited capability but there are no exemptions from the ESA medical sorry.

[Nystagmite]

That's all I've found (on various websites too)

[Nystagmite]

Like many, I've been on ESA for more than 13 weeks. 17 to be precise. I remember that they were saying about how those of us waiting longer than 13 weeks would (or should?) get the WRAG component until we're assessed and it's decided which group we're in.

 

Did this ever go through as law? Or was it something they were thinking about doing; but hasn't actually gone through yet?

 

Really fed up now - can't live on this amount (£56.25 per week) for much longer.

[**Margaret**]

:Nystagmite:

 

Case law changed but Work n Pensions put in a late application for the full statement of reasons. Don't think we know whether they've appealed to the upper tier.

 

There's a thread about it on Rightsnet;

 

'Employment n Support Allowance - Payment of Work Related Activity Component'

 

Regards, Margaret.

Edited October 22, 2012 by **Margaret**

[RaeUK]

Like many, I've been on ESA for more than 13 weeks. 17 to be precise. I remember that they were saying about how those of us waiting longer than 13 weeks would (or should?) get the WRAG component until we're assessed and it's decided which group we're in...

 

That would be nice, I'd be able to retire to warmer climes on the backdated payments! So far, this time round, I'm a day or two shy of week 48 of the assessment rate and not a sniff of an ESA50. To be fair, I gave up chasing it in July.

I do understand your despair, Nystagmite. It's only the advent of DLA that has made life financially bearable. And my assessment rate is a shade under £15pw more than yours.

[45002]

You need to read the whole thread even to begin to under stand it All !

 

http://www.rightsnet.org.uk/forums/viewthread/2810/

 

http://www.rightsnet.org.uk/forums/viewthread/2810/P15/#11894

Edited October 22, 2012 by 45002

[Nystagmite]

Thank you.

 

Rae - that's ridiculous. I received my ESA50 10 days after my claim. I was kind of hoping that would mean I wouldn't be waiting long to be seen.

[RaeUK]

I genuinely think my case is by far the exception and not the rule, I'm sure you'll be sorted soon.

[**Margaret**]

:Bad News:

 

In a not entirely unexpected turn of events;

 

Work n Pensions have appealed the first tier tribunal decisions.

 

Unfortunately, until the issue is decided by an upper tier tribunal, the work related activity component of employment n support allowance won't be paid pending the completion of a work capability assessment.

 

Margaret.

[Nystagmite]

Oh poo. Thanks for that.

[Zonker]

Where do i read about the tribunal decision and the subsequent leave to appeal to upper tribunal. I had a look but frankly its a bit gobbledegook and hit 'n' miss when i look at that lol.

 

From all i can see is:

 

Employment and Support Allowance

 

JR/2638/2010 & JR/2639/2012

Whether the duty under section 20 of the Equality Act 2010 can be enforced by judicial review. Whether the Department for Work and Pensions is in breach of its duty to make adjustments in respect of those with mental health problems when undertaking the preliminary stages of a work capability assessment.

 

and in sure thats about the getting doctors reports prior to an assessment.

[**Margaret**]

:Zonker:

 

Think you may be confusing two separate employment n support allowance cases currently meandering at snail pace through our legal system. For the moment neither can be accessed through the usual channels cos they're both sub judice.

 

Three appellants in East Anglia are arguing that claimants shouldn't be penalised for Atos' inability to complete work capability assessments within thirteen weeks. The Rightnet thread mentioned in #2 and #4 discusses differing interpretations of the regs.

 

Down in London two claimants who've mental health issues have, with help from a legal charity, forced a judicial review of whether the work capability assessment breaches equality legislation. Both Disabled People Against Cuts and the Disability News Service have articles on their websites.

 

Regards, Margaret.

[Zonker]

Thank you. I knew that there was a legal challenge with regards to mental health, thats the one i could find on the tribunals website in the upcoming section.

 

I cant find anything about leave to appeal or tribunal decisions on any of the 3 cases where esa is deemed to be paid at wrag rate from 13th week when they havnt been assessed by atos. Im sure there has to be something somewhere..i mean to say DWP were out of time and needed to ask for permission, thats got to be recorded somewhere?

[**Margaret**]

:Zonker:

 

For the moment the paper records of proceedings will be held at the tribunal venues. Eventually the decisions will get numbered and uploaded onto law databases.

 

Regards, Margaret.

Edited November 5, 2012 by **Margaret**

[**Margaret**]

:Zonker:

 

www.judiciary.gov.uk/media/tribunal-decisions

 

The decisions database on theTribunals Judiciary website doesn't list first tier decisions for social security and child support cases. Assuming there's no further appeal, after about six months the decisions together with full statements of reasons are loaded onto law databases and the paper records are destroyed. So far as I know the databases are only accessible via subscription.

 

Seem to remember that 'parties to the proceedings' can view the paperwork but I doubt it'd be accessible to anyone else.

 

Margaret.

[Zonker]

Thank you starryeyes , so 1st tier is available to subscription databases after time for appeal has lapsed.

[Nystagmite]

Update:

 

Asked GP receptionist if I need to see GP for a new fit note. She looked on her computer and asked if it was for ESA and said that they have been in contact; but they (surgery) haven't heard anything since.

[**Margaret**]

:Nystagmite:

 

Really the news from the first tier tribunals wasn't in your favour.

 

Take care, Margaret.

[**Margaret**]

:Zonker:

 

Not really cos, unless a judge can be persuaded otherwise, the timescale for further appeal (inclusive of a month to request the full statement of reasons) is about three months after the first tier tribunal decision.

 

Think it's more along the lines of;

 

If no-one's asked about this for six months we're safe to chuck the paperwork.

 

Margaret.

[Zonker]

Cheers starryeyes, in this case they had to ask for leave to appeal, they were out of time for a normal appeal:)