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ESA: Tribunal 'recommended' 24 months before reassessment, JC only give 12!


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Hiya,

Helping my friend out once again with her latest ESA issue. After a pretty awful 14 months with no benefit or the 'assesment rate', my friend finally got to a Tribunal, where her score jumped from 6 points to 30 points. The tribunal placed her in the WRAG - which makes sense because her intention is to return to work - however the Tribunal recommended the maximum period of 24 months before reassessment in light of the serious problems she needs to tackle before that'll be realistic.

 

Fantastic - I felt that was exactly the right result for her.

 

I accompanied her to the JC+ this week for her first WRAG interview, and we found the JC+ hadn't taken notice of the 24 month recommendation, instead giving her only 12 months. The advisor explained this would mean she'd have to take part in the work programme - which would indeed be very difficult for her at this stage.

 

My question is, can she appeal the JC's decision to give only 12 months?

 

There was an 'error in pen' with the initial judgment paperwork where it was stated as "within 24 months" - this was quickly corrected to read "after 24 months" following a request from her Citizens Advice worker. Could this be the cause of the issue, or is there a precedent for the JobCentre just ignoring the Tribunal's recommendations?

 

Could it be as simple as sending a fax off to the right place?

 

Any help and advice would be appreciated.

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does the copy of her tribunal award state 12 months or 24 months? if its 12 months and the judge said it would be 24 months then id say the date was wrong by error (if you believe this is the case ) then you need to contact the tribunals service directly and explain this to them your friend was awarded 24 months on the day not 12 the JCP are saying.

 

are you sure she was placed in WRAG group? as you have said she has to go to work interviews but this is what you have to do in the WRAG group its the support group where you do not have to attend the work interviews

 

 

but i have to say with all the changes that are still going on you can be recalled back for a medical from between 3/6 months of being out in WRAG group and its the same for the support group at the momoent too a time the tribunals gve you is not always the case my sister was placed in support group was told for a min of 3 years yet she was called back for an assessment 18 months later

 

but i would definitely get clarification form the tribunal service first

Edited by time4change2
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When a tribunal makes a recommendation following an appeal, it is only that: a recommendation. The DWP is free to ignore it and very often does. Their decision to do so can't be appealed.

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When a tribunal makes a recommendation following an appeal, it is only that: a recommendation. The DWP is free to ignore it and very often does. Their decision to do so can't be appealed.

 

As well as this the 2 years run not from the date the tribunal decides but from the date of the original DWP decision.

 

So the time that you've spent on appeal has to be included in those 2 years.

 

The maximum award length for ESA in practice is 3 years. Well actually it's worded do not reassess for "at least" 2 years. ATOS will send out a new ESA50 usually 3 months before that date hits to start the process again.

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She is definiely in the Work Related Activity Group. The letter definitely states "...recommends reassessment after 24 months" (corrected from "within 24 months").

 

In terms of the fact, it strikes me that the WRAG is the correct place for her to be. She has significant issues but she is working through them and optimistic about going back to work (ONCE THESE THINGS HAVE BEEN DEALT WITH!).

 

Who should she be getting in touch with, the JC+ or the Tribunals service?

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there is no 1 Year rule!

 

You are talking complete bobbins!

 

Whilst the tribunal recommendation of a prognosis/re-assessment date is relatively new and officially has no legal standing.

 

Until we start hearing of cases of the DWP ignoring it, it's a bit rum to scare people with ill informed speculation.

 

As well as the re-assessment time table this date is also now important as anything under 12 months can/will lead to automatic referral onto the work program.

 

Oh just to make things really clear I'm WRAG with an "at least 2 years" recommendation on my tribunal decision notice.

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It could be due to referral to Work Program that is now mandatory for ESA customers placed in the WRAG.

http://www.dwp.gov.uk/docs/wp-pg-chapter-2.pdf

 

WP ESA Mandatory (IR) WRAG 12Mth – Required entry from the point at which the outcome of the claimant’s WCA is known: ESA Income Related (IR) WRAG participants who as a result of their WCA have been given a prognosis of 12 months will be required to enter the WP from their WCA result.

 

• WP ESA (IR) WRAG 12 Mth Mandatory ExIB – Required entry from the point at which the outcome of the claimant’s WCA is known: ESA Income Related (IR) WRAG participants who have previously received incapacity benefits and as a result of their WCA have been given a prognosis of 12 months will be required to enter the WP from their WCA result. (from page 9)

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So - as far as this forum is aware, should the DWP accept the courts recommendation?

 

Being perfectly honest only the DWP and the Tribunal service can tell you with 100% certainty.

 

There's an undecided thread on rightsnet about this which we are sort of translating/speculating about here.

 

So we can try to offer advice on how to find out the answer but as nobody as yet knows the full answer to what you're asking we're about as much use as a chocolate teapot.

 

Since it's there it has to be there for a reason now that can only be to tell the DWP to leave them alone from x months/years and the DWP will accept that.

 

Although not legally binding on the DWP one could expect that the DWP would honour it!

 

Could this be a simple mistake? It could be and we hope it is!

 

Somebody read something wrong pressed the wrong button etc?

 

That's not unheard of in the wonderful world of the DW of P is it now!

 

Your best bet is to try and get past the phone jockeys on the ESA helpline and ask a processor for a call back. Then ask them direct if their's been a mistake if not why is the 2 year recommendation being ignored.

 

If it's a mistake great if not the best thing I can think off is Official Complaint asking for an explanation of why it is being ignored to the DWP cc'd to your MP and also the Tribunals Service.

 

It would prob be a good idea to throw this question up on as many boards as you wish to see if anybody has a better idea?

Edited by citizenB
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there is no 1 Year rule!

 

You are talking complete bobbins!

 

Whilst the tribunal recommendation of a prognosis/re-assessment date is relatively new and officially has no legal standing.

 

Until we start hearing of cases of the DWP ignoring it, it's a bit rum to scare people with ill informed speculation.

 

As well as the re-assessment time table this date is also now important as anything under 12 months can/will lead to automatic referral onto the work program.

 

Oh just to make things really clear I'm WRAG with an "at least 2 years" recommendation on my tribunal decision notice.

 

I didnt say it was a written rule.

 

I said I observed noone has reported been in WRAG for longer than a year at a time.

 

I think you may be a bit too trusting of the DWP if you think they follow written rules all the time.

 

I also said that the DWP can ignore any time specified by the tribunal as the tribunal have no power in that regard, they can only overule the fit for work status but not the prognosis time.

 

Your 2 years from tribunal is meaningless unless the DWP agreed with it, have you got confirmation from the DWP they wont be reviewing you for 2 years?

 

Also dont talk in bold caps thats very rude.

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FWIW, I have always felt that if the tribunal "recommends" something, it's just a way of them *telling* the DWP to do so, allowing for exceptional circumstances where a condition may improve, and the DWP are choosing as a tool to do what they want and ignoring the tribunal.

 

I always felt that there is a challenge waiting to happen there. I am of the opinion that when a tribunal passes judgment, and a recommendation is still a judgment, it is binding on all parties, and that the DWP are stepping over their authority when they take it on themselves to reassess people even though the tribunal has told them not to. I don't have the exact quote right now, but I know one of the SS act specifically states that (for DLA, but I don't see why this couldn't be extended to other benefits) the tribunal's decision is binding, UNLESS there is good cause to show that re-assessment should take place earlier.

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when I won my tribunal in 2011 after almost an 18 month wait, I was told by dwp that the tribunal had "advised" leaving me for 3yrs, but as IB was being phased out in/by 2014, I would be required to fill a form in during 2013, whether this will mean mere transfer to ESA or another WCA I have no idea, but find your post interesting Crazy Diamond, as if the DWP went with the tribunal advice I would be left alone until Feb 2014.

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and one of my illnesses has significantly worsened, so no reason why I should be assessed earlier, other than dwp choice. seems odd though that dwp have to abide by tribunal decision unless an error is made, but not by the recommendation, considering a doctor is on the tribunal also........

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These are the notes I made to myself a few months back (it IS about DLA, mind you, don't forget that!) with a view to putting together some more research on the topic (like the few other hundreds things I have on the back burner, and not enough man-hours to do it all!) but would welcome input if anyone has ideas on the subject:

 

**********************

 

Regulation 13C(3) of Social Security (Claims & Payments) Regulations 1987 is a free-standing power to revise DLA on review. It does not additionally require one of the grounds for revision. However, it can only be exercised where the claimant's condition has improved to a greater extent than expected between the date of decision and the renewal date or has not deteriorated during that period to the extent anticipated by the decision maker.

 

*************

My point is this: If this is the case, then the tribunal's decision is a legally binding one on the DWP, they can appeal it if they wish, but it is unlawful for them to disregard the tribunal's decision weeks or months after the event!

 

Transpose this to a criminal hearing: The jury find the accused innocent, the judge sets him free, but then the police re-arrests him every few months for the same offence and tries to get him judged again? Ludicrous. And unlawful.

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I guess they rely on the fact like folk such as me just don't understand it all and therefore forfeit our chances to challenge, as we don't see the opportunity. This site is a revelation, and thankfully I can come back and read it all again anytime, as I cant maintain a decent short term memory.

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thanks CD always a pleasure to have your input squire!

 

As for the rest of you rabble carry on.

 

I have personally heard/read of dozens of cases of the DWP doing reassessments in less time than the tribunal reccomendation. If you do posr the DWP honour your 2 years it will be the first one I have heard off.

 

yes the rest of us are lower beings below you and CD?

 

you never said if the DWP honoured your 2 year tribunal reccomendation.

 

how are you not speculating anymore than myself, we are all equal here.

Edited by worried33
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  • 6 months later...

Back in august 2012, i won my appeal for esa benefits. On the form i was given by the appeals court it clearly recommended for me not to be re-assessed for 24 months. However 1 MONTH later i was sent another capability for work assessment, and was told i would have to go through it all again and they didn't care what the court recommendations were.

 

I suffer from severe depression and social anxiety which the dwp were fully aware of and saw me as an easy target that would not fight back. I did everything i could but in the end i had to hand it all over to the citizens advice service as i was no longer able to cope.

It took about 2 months of letters, arguments and phone calls to dwp, courts, local mps etc, for dwp to very reluctantly agree to a 12 MONTH period to a next re-assessment, and not 24 MONTHS as recommended.

 

About 2 or 3 months after this the citizens advice service were sent an official letter from the DWP stating they would no longer be accepting appeal courts recommendations and would be re-assessing whenever they wish.

This letter was passed on to the appeals court. SO THE APPEALS COURTS ARE FULLY AWARE THAT THE DWP WILL BE IGNORING THEIR RECOMMENDATIONS.

Is it just me or does that make a complete mockery of the appeals system. The courts would not make these recommendations without good reason.

 

And sure enough, almost 12 months to the day, i have received another capability for work assessment. So the process, stress upheavel, threats of eviction and my spiraling out of control all starts again.

Does anyone know what i can do next or what my legal rights are? If my case hits the appeals court again, will they automaticly uphold the decision they made 12 months ago?

If anyone could help that would be great as this is all highly unfair and is already have a detramental effect on my mental health.

Thanks.

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What??? I won my tribunal in March and everything has been ok since.. Were you put in the support group? Back to CAB i think and your MP, don't let any stone left unturned, the buggers. What medical evidence do you have, it may just mean you have to fill in the form, provide medical evidence and your claim will continue.... you need that though..

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I just had the same problem, received a letter for an assessment from Atos to be held 9th September 2013.... my appeal was won on 9th May 2013 and placed into the Support Group with a reccomendation not to be reassessd for 24 months. Phoned Dwp to ask the reason why????? I was told as I had been placed into the Wrag Group in October 2011 my appeal decision runs from that date, not the date of the appeal....

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These are the notes I made to myself a few months back (it IS about DLA, mind you, don't forget that!) with a view to putting together some more research on the topic (like the few other hundreds things I have on the back burner, and not enough man-hours to do it all!) but would welcome input if anyone has ideas on the subject:

 

**********************

 

Regulation 13C(3) of Social Security (Claims & Payments) Regulations 1987 is a free-standing power to revise DLA on review. It does not additionally require one of the grounds for revision. However, it can only be exercised where the claimant's condition has improved to a greater extent than expected between the date of decision and the renewal date or has not deteriorated during that period to the extent anticipated by the decision maker.

 

*************

My point is this: If this is the case, then the tribunal's decision is a legally binding one on the DWP, they can appeal it if they wish, but it is unlawful for them to disregard the tribunal's decision weeks or months after the event!

 

Transpose this to a criminal hearing: The jury find the accused innocent, the judge sets him free, but then the police re-arrests him every few months for the same offence and tries to get him judged again? Ludicrous. And unlawful.

So how does the "LIFE" award work????? do I have a case to challenge this.....

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