ESA Tribunal next Thursday - ** WON **

[mickrick]

I made a claim to ESA when I got put on Pensionable Rate Of Pay in January following a motorcycle accident last summer. Trying to get through to the office was a nightmare, being met with "I'm sorry we are unable tio take your call. Please phone later." for days on end. I finally got through and after the multitude of hurdles to try and dissuade me from claiming, I finally made my claim and got my ESA.

 

Now my wife has had her hours reduced in work and I need to report a change in circumstances on an ESA3 form. The only way I can get this is by phoning them. But for the last 3 weeks, every time I've called (about 6 times an hour on an 0845 number) I have gotten the same "I'm sorry we are unable tio take your call. please phone later.".

 

This is ridiculous. How am I supposed to make a change of circumstances if I cannot get through? And if the only way I can contact the office is by phone, why is it a high rate 0845 number? Surely vulnerable people on this benefit shouldn't be expected to pay these high rate calls?

 

I worked in the benefits sector for 15 years and before I would've took people complaining about this with a pinch of salt. Now I'm seeing things from the other side of the fence and its obvious all this has been put in place to put peo[ple off claiming, or to at least make it as hard as possible.

 

Is there any other way I can get this form other than spending my days continually phoning this crowd with no success?

[honeybee13]

Hello there, I'm sorry you're having problems.

 

I would have thought there was an online way of reporting you want to, what has happened when you have tried that please?

 

Otherwise I hope that the guys in the know will be along with advice for you.

 

My best, HB

[mickrick]

I started claiming ESA in January as my Statutory Sick Pay from my employer ran out following an accident last summer.

 

ESA sent me loads of letters, some dated weeks after the dates the letters referred to and, in the round, all very confusing.

 

my claim was successful and I started getting my money paid fortnightly to my bank account. All good and well then? Well, not exactly.

 

In early April I received a letter to say I hadn't returned a form (I think the guy said on the phone today that it was a questionnaire called ESA50 but I could be wrong)

and my claim had been suspended. There was a form attached to appeal the decision.

 

I wrote back to say that since making my claim to ESA I had received dozens of letters from them, from DLA and from my employer

and that after looking through all these letters (I keep everything in relevant folders just in case) I could honestly say I couldn't find this form and

 

if they sent another I would return it immediately, and that I had complied with everything else they asked for

so there would have been no reason to not return this had it been received.

All this is completely true.

 

it may have been the letter was lost in the post, was delivered to a different address (which is not unheard of round these parts) or just wasn't sent out to me.

 

In the meantime, I was paid my ESA again on April 17th, as normal.

 

My wife had her hours in work reduced and I called 2 weeks ago to report this and wasn't told there were any problems.

I also had a letter from them to say my doctors line was due on the 1st May (dated 10th May). I heard nothing about my "appeal".

 

Then my wife noticed my ESA due on 1st May hadn't been paid, which I put down to my doctors line having to go to my employer first and then forwarded on to ESA.

But then my paymnent due on 15th May wasn't received either,

 

I tried (And tried. And tried) ringing ESA to see what the problem was.

 

I finally got through this morning and was told it was because my appeal hadn't been looked at yet,

that "that section is snowed under" and it will be some time before my appeal is looked at and if successful,

my benefit will be back paid to the date it was suspended.

 

I am suffering real financial hardship now.

 

We have 2 children of school age and are quite literally living hand to mouth.

 

Is there anything I can do to get them to speed up the "appeal" process?

[time4change2]

im not too sure how long it will take they will be snowed under

 

If you’re waiting for a benefit claim to be processed or an appeal to go through and you need money right now you might be able to get a Short-term Advance from the Job Centre.

 

They’re available in all parts of the UK. You’ll have to prove that you’ll be in dire need if you don’t get any money – for example you don’t have any savings.

 

id contact your local job centre and the should refer you onto your local council who will deal with this for you you only get food vouchers and vouchers for gas and electric ect ect they do not give you cash but it all depends on your current circumstances

 

it might be worth a try

Edited May 23, 2013 by time4change2

[mickrick]

Thanks for the advice, but I've a feeling things are done differently here in Northern Ireland. I rang my MP's office yesterday and told the girl there what had happened. She was really angry about it and said my benefit should not have been suspended because of a questionnaire and that they should have sent me a reminder or a duplicate before taking any such action. She said she would contact them on my behalf and call me back but that it would most likely be a case of they won't speak to her if I'm not there in front of her and that the MP may have to intervene.

 

Having worked in the Benefits Agency here in Northern Ireland for a number of years before moving to the IT sector, I have to say that, seeing how the system works from the other side of the fence, I'm ashamed to call myself a public servant.

[flumps1976]

STBA's are only considered if the claim has been processed at the beginning of the claim and a claimant is in need of money urgently or if there is a relevant change in circumstances that would result in an increase payment of the normal weekly payment.

If neither if these is appropriate a claimant will be directed to the local authority to request help through their crisis assistance.

 

If the claim was closed/suspended die to non receipt of the ESA50 then you can usually request that the claim is put back into payment and give reasons why the form was not returned in time (OP case non receipt of the form), and the claim will then be passed on receipt of the request to a /DM to consider the reasons, if good cause is accepted then the claim will be put back in payment but if not accepted then the claimant will not receive further payment until they have attended a medical.

 

The number of appeals has rocketed and the Benefit Centres ESA departments are struggling to cope with the work loads.

[speedfreek]

Have a read of these threads for some pointers to what is going on.

 

These are both missed WCA appointment letter threads.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?389245-Benefit-Stopped-because-of-ATOS-incompetence-**-RESOLVED-**

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?372590-ESA-Stopped-for-failing-to-attend-appointment.-Can-somebody-please-help

 

You're at the mail stage before the appointment letters, but it's the same principle/evidence/method and both won!

 

You should have received the ESA50 form plus a follow up reminder letter to send the ESA50 back.

[mickrick]

I rang ESA again and they would not let me speak to the Appeals section. I was told to claim JSA under "special circumstances" as a stop gap. I went to my local office yesterday and the lady I spoke to told me that as I am already employed and not looking for work, I can't claim JSA. As I am also a Civil Servant, she told me I should speak to my union rep and get them to speak to one of the local committee members there to put pressure on them to have the appeal dealt with.

 

Seriously, if this is the way they treat one of their colleagues, then I despair for those unemployed. You must be going through hell.

[mickrick]

Well as expected, ESA refused my appeal for not returning their non-existent ESA50 form (and have now added a a supposed reminder letter, which there was no mention of in the original suspension letter) and now I have to go to a tribunal next Thursday. My only defence is that I never got either.

 

I have had problems with post going missing, which I have emails from both Amazon and Zavvi to show, plus post has been delivered to various neighbours addresses by mistake and which I spoke to the postman about a few months ago when one lady in particular deciding it was my fault that this was happening and being quite nasty about it. I have also had Royal Mail redeliver a letter which a neighbour 5 doors away had received by mistake and demanded that they come out and collect it. Seriously.

 

And guess what - I sent my last sick line into them on 21st of June, got a proof of postage as well, and they are saying they didn't receive it. Typical, eh?

 

Anyway, other than these details, plus their failure to ever acknowledge any post I have sent them (we still don't know where my wife's 5 wage slips are which were sent to them 3 months ago) or letters referring to dates weeks, even months, in the past, what else should I say?

[45002]

It would have been easy just to carry on from your previous thread

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?392135-ESA-suspended-due-to-non-existant-form

[mickrick]

Except its been dormant for almost 2 months. Better to start a new thread about a new issue than bump an old one up. But thanks for the link to it.

[honeybee13]

Except its been dormant for almost 2 months. Better to start a new thread about a new issue than bump an old one up. But thanks for the link to it.

 

Hello there.

 

If it's about the same problem, it's better to repost on the previous thread. The people here trying to advise find it helpful to have all the information together to give the best advice, and it saves you typing things twice.

 

Some posters think they will have more answers if they start a new thread, but I don't think it works that way. If you post on a previous thread, you'll be back at the top of the list and people will see it.

 

HB

[honeybee13]

Mick, I'm not clear on what this tribunal is about.

 

Is it about your health or about post going missing please?

 

HB

[mickrick]

Its about my ESA being suspended because I never returned an ESA50 which I say I have no recollection of ever receiving but I asked them to reissue it and it would be completed and returned immediately. They treated that as an appeal, upheld their decision (of course) and referred it to a tribunal.

 

My ESA is contributions based as I'm still employed (NI Civil Service) and I have complied with everything they have asked me to do, including 4 medicals since September 2012.

[honeybee13]

Thank you, Mick.

 

And is the tribunal next week please?

 

HB

[mickrick]

The tribunal is this Thursday, 1st August.

 

On a strange note - between 2 and 2.30pm today, I had 7 phone callson my house phone from a freephone number, 08000121713. Each time I answered there were just a series of long beeps, going on for about 4 minutes each time. During these calls I was unable to hang up so my phone was locked until the caller hung up. When I called the number back, there was a recorded message to say someone from the benefits agency had called and if they needed to they would call back. I rang the ESA existing claims line, which was too busy to take my call (as usual) and so rang the new claims line from my mobile and explained to the girl who answered what was happening. While I was on the phone with her, the other number called again. So she took my details to check what was happening. She called back to say there was nothing on their system to say anyone had been trying to ring me and that she had issued a general email to the entire ESA office asking if anyone was trying to contact me and that she would call me back if anyone responded. Strangely enough, I had no further calls from then on.

[honeybee13]

So have you started work on a document to submit to the tribunal next week, Mick?

 

HB

[mickrick]

I spoke to a guy from a local community advice centre. He said the tribunal will consist of one person, a solicitor. I will be expected to outline any problems I've had with post and present any evidence I may have. I can also use evicence in the form of ESA saying they never received correspondence from me but which I have proof of sending (they said they never received my latest doctor's certificate which I have proof of postage for) therefore demonstrating that items of post going missing is widespread and can happy to anyone.

 

In also have letters from ESA demonstrating their ineptitude at administering my case, such as telling me one day that they have received all requested medical evidence for a certain period, then a few days later another to say that there is a gap in my medical evidence for the same period and asking me to get duplicate evidence. And telling me a doctor's certificate is due to expire on a certain date, 6 weeks after it expired and a further certificate had been sent in.

[worried33]

Its about my ESA being suspended because I never returned an ESA50 which I say I have no recollection of ever receiving but I asked them to reissue it and it would be completed and returned immediately. They treated that as an appeal, upheld their decision (of course) and referred it to a tribunal.

 

My ESA is contributions based as I'm still employed (NI Civil Service) and I have complied with everything they have asked me to do, including 4 medicals since September 2012.

 

Yeah they treat everyone as if they pulling a fast one, there is no trust.

 

Last year I never recieved correspendance relatign to my WCA, I also didnt recieve a letter that is supposedbly sent to ask why I didnt attend. I did eventually recieve a pre opened letter stating I was found fit for work due to non compliance of WCA and as such my money would stop in 4 weeks. I then the first working day after got letter (following monday as was saturday) offered to attend a new WCA when they make new booking, apparently this process is far too simple for them to carry out, instead I had to appeal or ask for reconsideration.

 

The DWP rules are heavily in their favour.

 

If any of your letters to the DWP go missing, they have no responsibility or blame, eg. sick note goes missing, you have to send another one.

If a letter doesnt arrive to you from the DWP, they only have to prove they issued it, they dont have to prove its in the postal system or it got delivered.

They can work on probability and 'assume' royal mail has delivered. In fact I believe alot of DWP decision making is based on assumptions.

 

Me telling them I hadnt got the letter simply fell on death ears, I even had evidence of wrong postcode been put on the letters, a wrong postcode read out to my MP over the phone, and all that got nowhere.

 

I only got a reconsideration (2nd time round, apparently I was only supposed to have one attempt at reconsideration) when a DM decided that on probability I didnt get the letter based on my previous record (had attended numerous medicals in the past without delays), and the time of the year with the letters been sent out over the new year period. In particular i had pointed out to them that the WCA was so close to my ESA50 and with the christmas period there was a chance they didnt allow reasonable time for the letter to arrive to give me reasonable notification of the WCA. Whilst the DM didnt mention this I suspect it had them scared if I went to appeal.

 

The big problem is when appealing non WCA compliance is no payments when appealing. Although you can make a new claim without the 6 month wait, there is no payments until a WCA has been carried out on the new claim.

 

The tribunal will probably work under the same basis, the balance of probability, so take the proof of previous postal problems with you and also make the point you offered cooperation in sending a new ESA50 back to them and they refused. I think you will probably be ok.

Edited July 31, 2013 by worried33

[mickrick]

Thanks worried33. What gets me is that my claim is contributions based and I'm still employed. This is the first ever ESA50 I've been sent as I've only been claiming since January. And my employer, who is their employer as well, has sent me to "the big doctor" regularly with the same outcome each time - passed as unfit and unlikely to become fit for the foreseeable future. They have access to all my medical evidence through our common HR service, and which they have told me they have accessed previously, but they are treating me like I'm claiming fraudulently.

 

I have also obtained copies of all telephone calls I've made to them, under a subject access request, and so have evidence of one particular staff member accusing me of lying, laughing at me and treating me with serious disrespect which, if I decide to, I can actually use as evidence to make a claim of bullying and harassment through my employer. I also believe that this is the same person who upheld the decision to suspend my ESA a few days later.

[**Margaret**]

:mickrick:

 

Bit late to plan a formal submission but here's some comments about what you've written. May help you to think clearly and plan a few notes.

 

You appear to have some documentary evidence of lost post, in both directions. Decision makers have to decide whether it's more probable than not that a particular letter wasn't sent or went astray. The issues they should consider are documented at;

 

http://www.dwp.gov.uk/docs/dmgch42.pdf

(sections 42261 - 42273)

 

Don't know whether ESA50s are sent out by Atos or Social Security in Northern Ireland. If a questionnaire was sent there should be copies of a dated covering letter, and a dated reminder, in the 'bundle' from Social Security. Or, at the very least, a computer printout from Atos showing the letters were prepared.

 

List and evidence the mistakes Social Security have made with your claim. Dents their credibility.

 

Unfortunately the opinions of 'the big doctor' only concern your capability for your present job. A work capability assessment concerns your capability for any work according to a set of legal criteria.

 

Best wishes, Margaret.

[mickrick]

Thanks Margaret. You've given me some food for thought there. The point I was trying to make about the "big doctor" is that I have no problem at all with medical assessments, I willingly undergo regular assessment. There is no reason at all why I would not willingly give ESA details of my disability, no reason not to return a form, no reason not to attend a medical assessment.

 

I also gave my signed permission for them to contact my GP for information regarding my disability, yet they say my "illness" is "unexplained".

[mickrick]

Well that was a total waste of my time. I attended, along with my wife (for support, not as a representative) and 2 representatives from ESA. The tribunal panel member, a female lawyer, started by reading out the case as set out by ESA, then went on to present "tab6" as ESA's "proof" of sending me a reminder for the ESA50. I stopped her at that point and produced my SAR documents which had copies of all written communications between ESA and myself and which did not include a copy of any such reminder. "Tab6" was a specimen photocopy of another form (ESA75) which had all relevant details blanked out. I told her that it was my belief no such reminder had been issued.

 

I tried to present my side of things, tried to give examples of post going missing, tried to give examples of incompetence by ESA, but she would not allow me to do so. I told her that she was supposed to remain impartial and allow me to present my case as everything I had to say including being lied to on several occasions, being given incorrect information and being treated disrespectfully, all of which I have the recorded telephone conversations provided by ESA, having my claim maladministrated, which I had letters to prove, all served to discredit ESA and she wouldn't hear tell of it. All she was there to do, she said, was to decide if it was reasonable to expect if I had or hadn't received the ESA50.

 

I told her that I wasn't saying I hadn't received it or that it had been lost in the post, just that I have no recollection of either receiving it, completing it or sending it back. I had wallets full of letters I had received from ESA, DLA etc which I wanted to present as evidence of the amount of correspondence I had received since I made my claim, therefore bolstering my case that I had no recollection of it. She wouldn't let me do that, instead asked me how I could possibly have no recollection of something so important. I was furious with her. Even the presenting officer for ESA apologised to me on behalf of the Social Security Agency for the way I and my claim had been dealt with and took me into a side room once it was over to give me details on how to proceed with a complaint. He was gobsmacked that I had all the telephone recordings to back my story up.

 

So, cutting to the chase, she said she would take her time to review the points made by both sides, asked me if I was happy with the way things had gone, which I told her in no uncertain terms that I wasn't in the least bit satisfied, then she said her decision would be posted out. So I can expect a big, fat, resounding "NO!" then.

[**Margaret**]

:mickrick:

 

Sorry to hear the judge gave you a hard time. Strictly speaking her only concern is whether you received the ESA50, but sounds like she could've been a bit more gracious about it. Also, she has to consider your evidence about missing post or give her reasons for disregarding it, and explain how she reached her decision from the evidence she considered. I don't know what an ESA 75 is but the covering letter and reminder are letters rather than forms. If they're sent out by Atos the refs are QR1 and QR2.

 

Should your appeal be dismissed there's some guidance about evidence and decisions at;

 

http://www.disabilityrightsuk.org/appealing-upper-tribunal-against-first-tier-tribunal-decision

 

In the meantime , if you have to make a new claim you can be treated as having limited capability for work once you've submitted an ESA50.

Best wishes, Margaret.

[mickrick]

Well my wife, who was actually allowed to speak although she wasn't there to represent me, seems to think it will be decided in my favour. I don't think I've a chance in hell.

 

The ESA guy I spoke with after the tribunal, also said that if I'd just said at the time that I have mental health issues and got a doctor's report to say that, my claim never would have been suspended. I suffer from clinical depression as a result of being virtually housebound and unable to work (through no fault of my own) and have been prescribed citalopram for many months now. I wasn't asked about anything like that either before or during the tribunal.

 

But in a landmark Belfast High Court case today, a judge found in favour of 3 people suffering from mental health issues who had had their ESA stopped for not completing esa50's. The court also heard about another person who has been severely disabled from birth was told they had to undergo a medical to prove they were incapable of working. So its not just our brothers and sisters on the other side of the Irish sea who have to suffer this vindictive and degrading treatment.

 

I never got a decision today but if I'm turned down I'll be taking it to a higher tribunal.

Edited August 3, 2013 by honeybee13
Contentious phrase removed.