esa appeal out of time

[jeannie22]

I need help with my esa appeal. I filled in my esa 50 in nov 2011 in Dec 2011 i was informed that I had been put in the wrag I was horrified so immediatley phoned the dwp to question this.I explained I was happy to attend a medical and explained that I would not be able to work at all. The person at the other end of the phone said that it would make no difference to me in fact I should be grateful that I had not been put into job seekers allowance group! So I accepted this very naively as it turned out. I went along to my job centre interview pushed by my husband using oxygen the person who interviewed me said I should have appealed as it was obvious I could not work. After this the support group rang and accepted that I could not attend any meetings. So I carried on as before until I received a letter to say that my contribution based benefit had stopped as I had received it for a year > I immediately lodged an appeal .The dwp turned it down and I am going to tribunal. It was turned down because it is out of time.

I had no idea there was such a thing as a support group it was early days of this benefit and I took the woman's advice from my first telephone call.

Subsequently I have received a copy of my medical report that was created by a nurse in response to my esa50 this report states I will not be able to work long term. However crucially this report does not mention my COPD in fact it says I have no respritory problems I was on Oxygen 16 hours a day and could barely walk 20 yards. It also claimed I was continent this is simply not true I have ulcerative colitis which frequently causes an evacuation of my bowels at least five times a week it can be 12 times a day all this was on my esa 50 so I could really do with some advice, I have rheumatoid arthritis :high blood pressure :under active thyroid: COPD: Sleep apneoa: chronic asthma :ulcerative colitis and minor depression with all that ist is hard enough getting through the day

[time4change2]

is you esa currently being stopped due to the 365 day rules now?

[jeannie22]

yes and i'm not entitled to income based benefit I am on higher based dla

[worried33]

I have to say am confused by what you posted.

 

You said you missed the time limit for appealing but it is going to tribunal? I you miss the time limit for appealing then it wouldnt be going to tribunal.

 

If it is going to tribunal then your appeal has been accepted and I think that is all you can do at this time.

[jeannie22]

well I was confused when I appealled to the dwp they said I was out of time they said I should have appealled within 4 weeks of nov 2011. Then out of the blue I had a letter from the tribunal people saying that they would decide if my appeal was out of date it would appear that I can use an anytime appeal but it is much more difficult and to be honest the only real excuse I have is naivity and plum ignorance. When i was on ib I attended job interviews so I assumed that the esa was the same and the phone call to the dwp simply told me I should be grateful I was'nt on jobseekers allowence

[Nystagmite]

There is a limit of 13 months to appeal. But you have to have a good reason to appeal.

[jeannie22]

yes but what constitutes a good reason? it seems to me that none of my reasons are good I would be interested to know where that is written about 15 months

[**Margaret**]

:jeannie22:

 

Late appeals that get rejected by Jobcentreplus are automatically referred on to the Tribunals Service, for consideration of acceptance by a judge. Thirteen months (mentioned in the notes that accompany a GL24 appeal form) is the absolute limit for a late appeal.

 

http://www.dwp.gov.uk/docs/GL24dwp.pdf

 

When you lodged the appeal did you explain why it was late? If not, or if you now feel you could've made a better job if it, write to the tribunal with chapter and verse about what happened. Being misadvised by Jobcentreplus can be accepted as grounds for a late appeal.

 

Payments of disability living allowance are disregarded when eligibility for income based benefits is calculated.

 

Good luck, Margaret.

[jeannie22]

thank you Margaret I appreciate that

[cleaver]

If my maths are right, the appeal was lodged after the 13 month deadline. Yes if the DWP reject any appeal it is sent to the Tribunal for their final ruling on the matter. That has now happened and the Tribunal has ruled that the appeal is out of time. The only alternative is to either appeal to the upper tier or put in a request that the ESA claim be reviewed now on the basis that the original condition has become worse.

[time4change2]

being on high rate dla does not mean your not entailed to income based ESA as DLA ia not means tested my siister is on income based ESA and high rate DLA

 

i dont think they would accept the fact that you did not know about the support group if they thought you met the support group descriptions they they would have placed you in this but every one has the right to appeal a decision if that's what your reason would be that you did not know there was a support group i cant see it myself but i may be wrong

[estellyn]

Even if you do not have a great reason (and a reason should be provided as to why the appeal is late), a Tribunal can accept a late appeal merely on grounds of 'natural justice' if they want to. So if you've made it patently clear in your appeal letter/gl24 what was wrong with the decision and why the appeal was late then the Tribunal may accept it. I've never had a Tribunal refuse to accept a late appeal (within 13 months) - but I only had a couple that were near the 13 month mark.

[cleaver]

Even if you do not have a great reason (and a reason should be provided as to why the appeal is late), a Tribunal can accept a late appeal merely on grounds of 'natural justice' if they want to. So if you've made it patently clear in your appeal letter/gl24 what was wrong with the decision and why the appeal was late then the Tribunal may accept it. I've never had a Tribunal refuse to accept a late appeal (within 13 months) - but I only had a couple that were near the 13 month mark.

 

Well I doubt that you would be able to help if I asked.

 

I'm currently appealing against a decision not to award a benefit that appears to date from June 2004!

 

I already have persuaded the DWP that the decision was utterly wrong and they have now changed the decision that benefit should have been paid to me from Feb 2004 until March 2011. However as an appeal was never lodged in time, they have refused to pay the money.

 

My late application is based entirely on the fact that the decision letter was sent to an address that lived at years before despite informing them of the new address. So still to this day I have never seen the decision notice so an appeal could not be sent in.

 

The Tribunal Service are considering both submissions as the moment - just under £20,000 is involved.

[estellyn]

Well I doubt that you would be able to help if I asked.

 

I'm currently appealing against a decision not to award a benefit that appears to date from June 2004!

 

I already have persuaded the DWP that the decision was utterly wrong and they have now changed the decision that benefit should have been paid to me from Feb 2004 until March 2011. However as an appeal was never lodged in time, they have refused to pay the money.

 

My late application is based entirely on the fact that the decision letter was sent to an address that lived at years before despite informing them of the new address. So still to this day I have never seen the decision notice so an appeal could not be sent in.

 

The Tribunal Service are considering both submissions as the moment - just under £20,000 is involved.

 

What benefit was it? Any time revisions can be made and arrears paid on certain benefits, but not others.

[cleaver]

What benefit was it? Any time revisions can be made and arrears paid on certain benefits, but not others.

 

IIDB. The review took place in Jan 04, my earlier award ceased payment (40%) in June 04. I wrote to them in late June 04 asking what is happening and that I hadn't heard the result of the review medical that took place in Jan 04. I also made a point of saying that I wanted full details if I had failed of the decsion and that I intended to appeal.

 

I heard nothing until I did a SAR in 2011 when it became apparent that the decision notice had been sent to an address I lived at up until 2003, in late June 2004. Yet Medical Services managed to write to me at the new address re the Jan 04 review! I hold a copy of the letter I sent to them in 2003 advising of the new address.

I applied in June 2011 for a review I had a medical with ATOS and was awarded the 40% again only from March 2011 (max 3 months backdating) to February 2014.

 

I then applied for an any time revision of the 2004 review (based on what I found out following the SAR request). I submitted evidence that existed in February 2004 to show my condition at the time, evidence that the condition remained unchanged from 2004 until 2011 and evidence that was used to support the 2011 decision which also showed no change.

 

The DWP then accepted that and revised the decision to allow the award from February 2004 to February 2014.

 

However they then said that even though the award had been given I could not have the backdated money as no appeal had been lodged.

 

So in December 2012 I lodged an appeal against the 04 decision telling the DWP that I couldn't lodge one earlier as I had not been served the decision notice.

They countered and said that a notice had been sent out in July 04 to the correct address. I disputed that correctly and asked them to prove it. They admit they can't as no one took a copy of it and put it in the file, but 'but you can be assured we did'.

[RaeUK]

I too am not clear about the OP so, with apologies, I'll cherry pick!

 

... I had no idea there was such a thing as a support group it was early days of this benefit ...

 

2011 is not 'early days'. ESA started in October 2008, well over two years earlier.

 

 

... does not mention my COPD ...

 

On this subject you need to narrow down the diagnosis. COPD is a bland 'catch-all' phrase that nobody really understands and, in it's milder forms, does not preclude working for a living.

 

... put in a request that the ESA claim be reviewed now on the basis that the original condition has become worse.

 

Steady on cleaver! You're in danger of actually giving genuine advice here!

[estellyn]

IIDB. The review took place in Jan 04, my earlier award ceased payment (40%) in June 04. I wrote to them in late June 04 asking what is happening and that I hadn't heard the result of the review medical that took place in Jan 04. I also made a point of saying that I wanted full details if I had failed of the decsion and that I intended to appeal.

 

I heard nothing until I did a SAR in 2011 when it became apparent that the decision notice had been sent to an address I lived at up until 2003, in late June 2004. Yet Medical Services managed to write to me at the new address re the Jan 04 review! I hold a copy of the letter I sent to them in 2003 advising of the new address.

I applied in June 2011 for a review I had a medical with ATOS and was awarded the 40% again only from March 2011 (max 3 months backdating) to February 2014.

 

I then applied for an any time revision of the 2004 review (based on what I found out following the SAR request). I submitted evidence that existed in February 2004 to show my condition at the time, evidence that the condition remained unchanged from 2004 until 2011 and evidence that was used to support the 2011 decision which also showed no change.

 

The DWP then accepted that and revised the decision to allow the award from February 2004 to February 2014.

 

However they then said that even though the award had been given I could not have the backdated money as no appeal had been lodged.

 

So in December 2012 I lodged an appeal against the 04 decision telling the DWP that I couldn't lodge one earlier as I had not been served the decision notice.

They countered and said that a notice had been sent out in July 04 to the correct address. I disputed that correctly and asked them to prove it. They admit they can't as no one took a copy of it and put it in the file, but 'but you can be assured we did'.

 

This is out of the decision makers' guide:

 

 

 

03259 In considering whether a decision was based on an official error, DMs

should note that

 

 

 

 

1. an official error refers only to a clear mistake of fact or law arising
   

1. 
   because an officer has failed to make a decision or take an administrative act
   that was required under SS legislation. The officer must not have been acting in
   a private capacity for example giving advice to a neighbour
   
   
2. the official error must have made the appropriate decision wrong
   
3. the error must lie in the decision and not merely in the
   
4. 
   circumstances surrounding its issue
   

Sadly in your case, getting the address wrong which meant you couldn't appeal, though an error, does not justify an any time revision payment of arrears. If you could show there was an official error in the decision itself (the one that was sent to the wrong address), then arrears may well be paid. Though I think this is unlikely as the mistake was sending the decision to the wrong address.

 

Another option, which I would recommend, is to apply for an ex gratia payment for the period. If under the law an arrears payment cannot be made, then an ex gratia payment can be applied for, and if refused can be taken further. There's a document you can look at, but I can't link to it because it's a PDF, but it's called 'Financial redress for maladministration', if you google it, it should come up. There's info there that may help you.