Failed ESA medical appeal

[SVL]

Hello everyone,

 

First time writer here with a few questions needing answered.

 

Quick background story is:

 

I've been suffering from panic attacks and depression on and off since 2008

 

As stated in the topic title I recently lost my medical tribunal appeal and now have a few questions.

 

1. What would be the options after this ? From my understanding it's first of all to write to the tribunal to ask for the reasons and see if it is a error of law case?

 

2 a. When I write into the tribunal will I still be able to claim ESA until they have contacted back ?

2 b. Should I receive feedback and I wish to appeal again would I still be able to claim ESA whilst it's on going or do I have to claim JSA ?

 

3. If I do have to claim JSA what is the time frame for making a new ESA claim ? I originally applied on 09/01/2012 and failed my medical on 01/05/2012 and their decision was made on 07/06/2012

 

4. Should I have been entitled to the WCA rate from 07/06/2012 ? If so would I be able to back date it even though I lost the appeal ?

 

 

I am going to see someone from Citizens Advice on Wednesday but would be grateful if someone has some answers in the mean time.

 

Kind regards,

 

SVL

[coledog]

Sorry - have you just failed an ATOS assessment and DWP decision or has this been to tribunal?

[estellyn]

Your previous ESA claim will now stop, as soon as the DWP process the decision from the Tribunal. Even if you decide to appeal to the upper tribunal, you still can only receive ESA if making a new claim based on med certs from your doctor.

 

If your WCA decision letter is dated at least 6 months ago, then you can make a brand new claim to ESA. If it isn't, then the only way to reclaim ESA is on the grounds that your condition has worsened - but on these grounds you wouldn't be paid until passing your medical.

 

No you can't get paid the WRAG rate at present until you pass a WCA and get put in the WRAG group.

[SVL]

Sorry - have you just failed an ATOS assessment and DWP decision or has this been to tribunal?

 

I have failed my ATOS medical on 01/05/2012 and appealed this, and have just lost that appeal.

 

Your previous ESA claim will now stop, as soon as the DWP process the decision from the Tribunal. Even if you decide to appeal to the upper tribunal, you still can only receive ESA if making a new claim based on med certs from your doctor.

 

If your WCA decision letter is dated at least 6 months ago, then you can make a brand new claim to ESA. If it isn't, then the only way to reclaim ESA is on the grounds that your condition has worsened - but on these grounds you wouldn't be paid until passing your medical.

 

No you can't get paid the WRAG rate at present until you pass a WCA and get put in the WRAG group.

 

Ok, so to be sure I can only make a new claim if 6 months have passed since the original decision (07/06/2012) and not since the medical (01/05/2012) ?

 

Other than that I have to put forward that my condition is worse now than when I put the original claim in ? My doctor has signed me off for 4 weeks at present time.

 

It's all so confusing to me

[coledog]

Has this been to appeal in front of a judge and doctor or just to DWP review?

[estellyn]

Has this been to appeal in front of a judge and doctor or just to DWP review?

 

Yes what I said only applie if has been in front of a Tribunal panel, if not it will go to Tribunal and you'll continue to be paid ESA.

[SVL]

Has this been to appeal in front of a judge and doctor or just to DWP review?

 

It went in front of a judge and doctor, however they only wanted information from the period in which the decision was made (June) so all the questions asked were about the first week of June.

 

When I tried to show them that my situation has changed for the worse since then, they refused to listen/take that into account.

 

They just went through the original form I filled in January and asked me how I felt regarding those issues in June and they just refused to listen or make notes of what has happened since then.

[coledog]

In that case you need to supply evidence to DWP that your condition has worsened since the decision was made and effectively make a new claim. Get a new sick note from your doctor highlighting the changed medical condition and definitely see CAB or similar

Edited October 26, 2012 by coledog

[abc123def]

Yes sounds like the Tribunal came to the right legal decision as they can only deal with how you were at the date of decision in June. However if your illness or condition has worsened then you have grounds to make a new claim immediately rather than wait for the 6 months from previous decision.

[estellyn]

Yes sounds like the Tribunal came to the right legal decision as they can only deal with how you were at the date of decision in June. However if your illness or condition has worsened then you have grounds to make a new claim immediately rather than wait for the 6 months from previous decision.

 

Though you won't get paid until you have your new assessment. If you aren't able to support yourself during this period, then you may nee to claim JSA in order to eat.

[coledog]

Though you won't get paid until you have your new assessment. If you aren't able to support yourself during this period, then you may nee to claim JSA in order to eat.

 

No - you can claim ESA straight away but need a sick note to confirm that your condition has worsened

[estellyn]

No - you can claim ESA straight away but need a sick note to confirm that your condition has worsened

 

Are you sure? Is this new as previously people weren't paid until after a passed medical, but I've been out of the loop for a while.

[RaeUK]

I can only speak from my own experience, estellyn. On IR ESA I've had no problem immediately making a new claim and being paid from as soon as the claim is processed. Indeed, the last time it was put through as a fast-track claim to ensure that I wouldn't experience any break in payments. I like my BDC! That was, to be fair, almost a year ago ...

[antone]

Are you sure? Is this new as previously people weren't paid until after a passed medical, but I've been out of the loop for a while.

 

If you reclaim within six months without a new condition or worsening of your existing one, then no, you cannot be paid until you have been found to have LCW - whether that be at an ATOS WCA (most common, of course) or by a DWP DM. But if you can show that either of these things is true, you should be paid at the assessment rate from the start of your new claim. That rule was in place when I worked for the ESA section, which was a couple of years ago now.

[estellyn]

If you reclaim within six months without a new condition or worsening of your existing one, then no, you cannot be paid until you have been found to have LCW - whether that be at an ATOS WCA (most common, of course) or by a DWP DM. But if you can show that either of these things is true, you should be paid at the assessment rate from the start of your new claim. That rule was in place when I worked for the ESA section, which was a couple of years ago now.

 

I've been out more than 3 years now. How do they prove the worsening condition? A med cert saying 'worsening of....'? The new condition was always what we wanted on a med cert - the difficulty was always proving that the existing condition had worsened.

[RaeUK]

That's a good point, estellyn. My med certs have never said 'worsening of...' my GP writes the same thing each time. I presumed they've taken my word. But, that said, perhaps common sense came into play as I have a disease that, by it's nature, cannot get better but will always get progressively worse.

[estellyn]

That's a good point, estellyn. My med certs have never said 'worsening of...' my GP writes the same thing each time. I presumed they've taken my word. But, that said, perhaps common sense came into play as I have a disease that, by it's nature, cannot get better but will always get progressively worse.

 

But were you always reapplying at least 6 months after the original decision?

[antone]

I've been out more than 3 years now. How do they prove the worsening condition? A med cert saying 'worsening of....'? The new condition was always what we wanted on a med cert - the difficulty was always proving that the existing condition had worsened.

 

To be honest, I don't know - I never actually encountered anyone trying to claim on the basis that their condition had worsened. I imagine the difficulty they'd have in proving it is probably the main reason for that.

[estellyn]

To be honest, I don't know - I never actually encountered anyone trying to claim on the basis that their condition had worsened. I imagine the difficulty they'd have in proving it is probably the main reason for that.

 

I had two in the early days of ESA - in both cases the payments were put on hold as the DWP refused to accept that the condition would have significantly worsened in the time frame according to their disability analyst - so they had to wait for a WCA to get paid.

[worried33]

I had two in the early days of ESA - in both cases the payments were put on hold as the DWP refused to accept that the condition would have significantly worsened in the time frame according to their disability analyst - so they had to wait for a WCA to get paid.

 

is that legal?

 

I think what you saying is a DM with no medial qualifications can essentially call a medical professional a liar, and "refuse to believe", A disability analyst backing a DM up wouldnt seem quite fair when that analyst has not physically examined the claimant. No medical condition cannot get signficantly worse as long as the person is still alive, any medical professional who says otherwise is talking out their backside. Even a common cold can change into a life threatening condition.

[Nystagmite]

The problem with the disability analyst is that they haven't met the person. So, for someone with a certain condition, they might be lucky and have their condition under control. But for someone else, this isn't the case and the condition has worsened.

 

This is true for me. In theory I shouldn't be getting worse. Yet, there is documented evidence over 5 years which says I am getting worse. (or no change sometimes)

[RaeUK]

But were you always reapplying at least 6 months after the original decision?

 

Ah. Good point Batman. I think you're right ...

[estellyn]

is that legal?

 

I think what you saying is a DM with no medial qualifications can essentially call a medical professional a liar, and "refuse to believe", A disability analyst backing a DM up wouldnt seem quite fair when that analyst has not physically examined the claimant. No medical condition cannot get signficantly worse as long as the person is still alive, any medical professional who says otherwise is talking out their backside. Even a common cold can change into a life threatening condition.

 

It's pretty bad. They take the disability analyst's view of the condition, plus the comments of the WCA assessor, then make a decision on what is 'likely'. Whether or not this is still done, I don't know - but if it's not, anyone could claim worsening condition on ESA reclaim within 6 months and would just be accepted - which doesn't seem likely.

[worried33]

It's pretty bad. They take the disability analyst's view of the condition, plus the comments of the WCA assessor, then make a decision on what is 'likely'. Whether or not this is still done, I don't know - but if it's not, anyone could claim worsening condition on ESA reclaim within 6 months and would just be accepted - which doesn't seem likely.

 

yeah the good old DWP working on probability again.

 

eg. I have conditions that are associated with 60+ year olds and I am only 33 I have already thrown whats 'likely' out of the window and into the trash can, I am already against the norm, so assessing whats normal against me would make no sense at all as clearly my body is different. I expect this applies to many people in similiar circumstances to myself. If people only had whats 'likely' they wouldnt be ill in the first place.