From support group to claim terminated by DWP - what to do now?

[DeadRinger]

I really could do with some advice.

 

Here's the situation:

 

I was on support group, moved over from incapacity benefit, due to mental health issues. Two months after getting moved over (which had involved being assessed) I get an ESA50 form. As it was so soon after being assessed, I wrote back to both ATOS & DWP asking why I needed to fill in the form when I'd recently been put on support group.

 

I hear nothing for a while. Then ATOS replies saying its not them, but the DWP. Fair enough, I'll wait for the DWP reply I thought. Never received one. Wrote back to ATOS asking for them to hold their horses until DWP gets back with a decision about if I need to it.

 

Fast forward to Friday, and I don't get paid. Phone up - told no payment is due as I didn't fill out the form, and it had been to a decision maker who decided to terminate my claim.

 

First of all - I have received nothing from the DWP in writing. Secondly - I know now I should have just filled the form in and sent it back, but I did not know that then. I didn't want to go through another assessment so soon and still believe its completely wrong.

 

Anyway - I was told I will not get any appeal rate. What do I do now for money? I have a toddler, and another child on the way. In this situation, how can they just kick me off when they didn't respond to me, when I have to have money to buy food to eat, let alone for my son... I'm at a total loss.

 

Is this a sanction? Or is it a complete end for my claim? Can I re-claim? What normally happens when you fail to comply with the regulations, as the rude man at the DWP put it?

[Nystagmite]

It sounds as though they've closed your claim. You can make another one and will need to send in fit notes.

[DeadRinger]

Thanks Nystagmite. Do you think I have right of appeal, do you know?

 

If I have to make a new claim I will though.

[**Margaret**]

: DeadRinger:

 

Jobcentreplus have terminated your claim for failure to return the ESA50 questionnaire. Their decision's appealable and the question for a tribunal is whether non return of the questionnaire was reasonable on this occasion. And not having dealt with this scenario before I don't know. The usual advice, from CAG and welfare rights advisers alike, is to return the ESA50 anyway and argue about it later.

 

The regs governing these issues are 22, 24, and 34 (4) and (5) of;

 

http://www.legislation.gov.uk/uksi/2008/794/contents/made

 

Were I to find myself in your situation, I'd appeal cos you've nothing to lose (you're not risking an existing award) cept the time preparing it. And the stakes are higher for you than for some others. Very few recipients of conversion awards from incapacity benefit have the right national insurance contributions for a new contributions flavoured claim, once entitlement to an existing claim is lost. Also, if you've a partner in work, you probably won't qualify for a income related award.

 

Two possible 'defences';

 

From the QR1 covering letter for an ESA50, 'If you want to know more about why we have sent you this questionnaire ...... please contact the Jobcentreplus office that deals with your claim'. You could reasonably have expected a reply to your enquiry within the month allowed to return an ESA50. Especially if you've proof of postage or sent the letter recorded delivery.

 

Reg 24 talks about 'the nature of any disability the claimant has'. Not an automatic get out, but severe mental health conditions are usually accepted as good cause for non return of an ESA50. And decision makers should look for a mental health flag on a claimant's file before disallowance. Atos assessments are stressful. Praps you wanted to know why another one was essential, or confirm that the ESA50 hadn't been sent in error, cos you felt unable to cope with another form and Atos assessment?

 

Assessment rate employment n support isn't payable pending an appeal against 'failure to return'. There's no problem with an appeal and a new claim running concurrently. In your circumstances, Jobcentreplus won't pay a new claim initially but can treat you as having limited capability for work once you've returned an ESA50.

 

Sincerely, Margaret.

Edited August 27, 2013 by **Margaret**