On ESA WRC: what happens next?

[semayden]

I succeeded in winning my appeal for ESA at Tribunal eight months ago, being awarded WRC at the hearing. The judge said she would recommend that DWP call me back within the year. But I don't know what that entails!

 

I was never called for interview at the local Job centre concerning my placement on work related component, and although it's nice to be left in peace after struggling with them for a few years - I'm worried because I don't know what lies ahead.

 

Will I have to go around the wheel of Atos/DWP appeal/Tribunal again?

[reallymadwoman]

You should probably consider yourself very lucky as I think anyone with a prognosis of less than 12 months now has to attend the work programme. However, until Jobcentre contact you just sit back and enjoy the rest.

 

At some point you will probably get another ESA50 to complete and start the whole thing all over again though you may not have to go for a face to face assessment. Make sure you include a copy of the tribunal decision with your form or they may just go by the last ATOS report.

[semayden]

You should probably consider yourself very lucky as I think anyone with a prognosis of less than 12 months now has to attend the work programme. However, until Jobcentre contact you just sit back and enjoy the rest.

 

At some point you will probably get another ESA50 to complete and start the whole thing all over again though you may not have to go for a face to face assessment. Make sure you include a copy of the tribunal decision with your form or they may just go by the last ATOS report.

 

Hi RMW, thanks for your quick reply! When you say that I may not have to go for a face to face assessment, are you referring to the Atos medical or Job Centre?

 

I have found my copy of tribunal decision (in back of kitchen drawer, gulp!) so thanks for the advice to include that with any ESA50.

.

 

Is it possible that they haven't called me because I was 60 in May of this year?

[reallymadwoman]

Your age may well be a factor in deciding not to call you to attend the job centre or work programme, though my experience of these is very limited so I can't say for sure.

 

It is possible that for your next ATOS assessment they won't want to see you. The more evidence you send with your form, the more likely this is. Even a copy of your prescription list and hospital appointment letters can tip the balance. Also to factor in however are the unknowns like how busy your area is and how familiar ATOS staff are with your condition(s) and their effects. Asking for your assessment to be recorded (in the space for special arrangements for attending an assessment) can also mean that at worst your assessment (and therefore stopping your benefits/having to go to tribunal again) is considerably delayed.

 

Have you asked about claiming pension credit instead of ESA - I'm not sure what the cut off age is now, but if it's possible you may well be no worse off and not have to jump through all their hoops.

[swinginapig]

You say you won Tribunal 8 months ago, I am presuming therefore you did not gain enough points to continue receiving Esa??? if this is the case the recommendation the Tribunal made about recalling you within the year starts from the original decision not from the Tribunal date, so could be anytime in the near future.

[semayden]

You say you won Tribunal 8 months ago, I am presuming therefore you did not gain enough points to continue receiving Esa??? if this is the case the recommendation the Tribunal made about recalling you within the year starts from the original decision not from the Tribunal date, so could be anytime in the near future.

 

The judge awarded me 18 points and recommended I be given WRC of ESA with back payments to the date of the Atos medical - all of which I have received. Is it not correct to say I won my Tribunal? Perhaps it would have been clearer if I had written that I won my 'appeal' against the Atos/DWP decisions (which I did).

[semayden]

Your age may well be a factor in deciding not to call you to attend the job centre or work programme, though my experience of these is very limited so I can't say for sure.

 

It is possible that for your next ATOS assessment they won't want to see you. The more evidence you send with your form, the more likely this is. Even a copy of your prescription list and hospital appointment letters can tip the balance. Also to factor in however are the unknowns like how busy your area is and how familiar ATOS staff are with your condition(s) and their effects. Asking for your assessment to be recorded (in the space for special arrangements for attending an assessment) can also mean that at worst your assessment (and therefore stopping your benefits/having to go to tribunal again) is considerably delayed.

 

Have you asked about claiming pension credit instead of ESA - I'm not sure what the cut off age is now, but if it's possible you may well be no worse off and not have to jump through all their hoops.

 

Thanks again for your reply: I feel clearer and more hopeful about what might lie ahead.

 

I looked at the Pension credit side, and it looks as if you have to have reached pensionable age to qualify for it. I was born in May 1953 and fall into the group where I will reach state pension in my 64th year - alas!

[swinginapig]

The judge awarded me 18 points and recommended I be given WRC of ESA with back payments to the date of the Atos medical - all of which I have received. Is it not correct to say I won my Tribunal? Perhaps it would have been clearer if I had written that I won my 'appeal' against the Atos/DWP decisions (which I did).

Yes I know you won your Tribunal/Appeal as you said, but you must have decided to go to appeal for a reason, hence the first decision from DWP was not in your favour, is this correct??, therefore the Judges reccomendation of leaving you alone for 12 months starts from the original DWP decision and not the Tribunal date, you say your payments were backdated to the Atos medical, the Judges appeal notice also backdates to that same date, so your 12 months starts from the Atos medical, thats why I said your next assessment with Atos if one is required could be anytime in the near future. Perhaps if I explain my situation it will be clearer for you. I went to Atos Medical October 2011, gained 18 points and placed into the Wrag Group November 2011, went to appeal as I felt I should have been placed into the Support Group. Won my Tribunal/Appeal same thing, May 2013 with a reccomendation from the Judge not to reassess me for 2 years. The 2 years started November 2011, the 2 years are up November 2013 and I have already received another Esa50 form to fill. Hope this is more clearer for you to understand. Confusing I know when people are ill.

Edited September 27, 2013 by swinginapig

[semayden]

Yes I know you won your Tribunal as you said, but you must have decided to go to appeal for a reason, hence the first decision from DWP was not in your favour, correct??, therefore the Judges reccomendation of leaving you alone for 12 months starts from the original DWP decision and not the Tribunal date, you say your payments were backdated to the Atos medical, the Judges appeal notice also backdates to that same date, so your 12 months starts from the Atos medical, thats why I said your next assessment with Atos if one is required could be anytime in the near future.

 

Well, the Tribunal 'Decision notice' says 'The Tribunal recommends that the department reassesses the appellant within 12 months', and the date of the appeal just below is 23/01/2013. Surely it would state on the notice that the 12 month period runs from the date of an Atos medical? The judge was really kind, informative and talkative (suprisingly!) and I can't help but feel that she would have made it plainer that the 12 months tp DWP interefrence (!) began from the Atos date. Does your info come from personal experience? Not meaning to sound rude, but I'm confused now. Thanks.

[reallymadwoman]

Regardless of whether the time for reassessment runs from the date of the original decision or the date of the tribunal decision - and which you are told does seem to depend on which office/decision maker you ask - the bottom line is that it is a recommendation and DWP can follow or ignore it at their will. When they want to reassess you, they will however long has passed since your last assessment. There is actually no point worrying about when it will happen since no one can predict when that will be.

[swinginapig]

Well, the Tribunal 'Decision notice' says 'The Tribunal recommends that the department reassesses the appellant within 12 months', and the date of the appeal just below is 23/01/2013. Surely it would state on the notice that the 12 month period runs from the date of an Atos medical? The judge was really kind, informative and talkative (suprisingly!) and I can't help but feel that she would have made it plainer that the 12 months tp DWP interefrence (!) began from the Atos date. Does your info come from personal experience? Not meaning to sound rude, but I'm confused now. Thanks.

Ye I have personal experience as stated in the above post, I also sent an Email to my MP and phoned Dwp asking why I had a reccomendation from a Judge of 24 months and still received another Esa50 form to fill in only 4 months after Tribunal date, they both replied, because the 24 months start at the original decision date, in my case November 2011. They also said it is only a recommendation anyway and we dont have to adhere to it anyway, we can call you in anytime we wish to.

When you go to Appeal the Judge is looking at your capabilities at the time of your Atos Medical, therefore any judgement he makes is for that period of time, so recommendations run from that time, according to my MP and DWP anyway.

Edited September 27, 2013 by swinginapig

[semayden]

Regardless of whether the time for reassessment runs from the date of the original decision or the date of the tribunal decision - and which you are told does seem to depend on which office/decision maker you ask - the bottom line is that it is a recommendation and DWP can follow or ignore it at their will. When they want to reassess you, they will however long has passed since your last assessment. There is actually no point worrying about when it will happen since no one can predict when that will be.

 

Ok, thanks. Well, my last Atos medical was 18 months ago, so maybe they've forgotten about me! Anyway, you have helped to calm me.

[semayden]

Ye I have personal experience as stated in the above post, I also sent an Email to my MP and phoned Dwp asking why I had a reccomendation from a Judge of 24 months and still received another Esa50 form to fill in only 4 months after Tribunal date, they both replied, because the 24 months start at the original decision date, in my case November 2011. They also said it is only a recommendation anyway and we dont have to adhere to it anyway, we can call you in anytime we wish to.

When you go to Appeal the Judge is looking at your capabilities at the time of your Atos Medical, therefore any judgement he makes is for that period of time, so recommendations run from that time, according to my MP and DWP anyway.

 

Thanks, yes I see what you are saying. Perhaps here in Leeds the DWP move more slowly. Hope so!

[swinginapig]

Thanks, yes I see what you are saying. Perhaps here in Leeds the DWP move more slowly. Hope so!

Suppose it depends on the back log they have, different areas have more of a back log than others.

[semayden]

Hi everyone, I'm back now having received the dreaded Atos Form to fill in (yet again)!

 

My question this time is as follows:

 

If we assume that I fail this Atos medical (again) and we then assume that the DWP decision maker rejects my appeal and sends paperwork on to another Tribunal - do I still continue to receive Work Related Component until next Tribunal decision, or would I drop immediately back to the basic rate ESA as soon as Atos failed me? I know I sound negative, but it's as well to be prepared!!

 

I won my appeal at Tribunal hearing earlier this year, if that helps, and will send a copy of that decision plus doctors letter with Atos form.

 

Thank you for reading.

[reallymadwoman]

i'm almost certain that if you fail and appeal you will only be paid at the assessment rate, plus you would also first have to have a mandatory reconsideration before you can appeal during which you would not be paid at all. There is no time limit on how long DWP can take to do the reconsideration.

 

It is well worth making sure you fill the form in really well and submitting any and all evidence you have to back up your claim.

[semayden]

i'm almost certain that if you fail and appeal you will only be paid at the assessment rate, plus you would also first have to have a mandatory reconsideration before you can appeal during which you would not be paid at all. There is no time limit on how long DWP can take to do the reconsideration.

 

It is well worth making sure you fill the form in really well and submitting any and all evidence you have to back up your claim.

 

Good morning RMW and all,

 

Well, I rang DWP and yhey were very helpful, and yes, there are changes in place now which weren't there last year. They did say that if I got as far as appealing the DWP decision (assuming Atos failure) the mandatory reconsideration should not exceed 14 days, during which I am not paid. After that, if I wish to continue appealing (if it proves to be neccessary) I have to approach the Tribunal courts directly myself. I assume that I can reclaim, but only at basic rate, whilst that part is going on - or would it count as an 'ongoing claim'? Happy Christmas one and all! Oh well, he did say to be positive, submit everything I can re my condition, and just take it step by step.

[**Margaret**]

:semayden:

 

Should you 'fail' your next work capability assessment, payments of employment n support will stop from the date of disallowance.

 

A little light reading;

 

https://www.gov.uk/government/publications/appeals-process-changes-for-dwp-benefits-and-child-maintenance

(Appeals reform: questions and answers)

 

The only mandatory reconsiderations done with fourteen days will be the ones where there's no extra evidence to submit or the claimant deliberately withholds additional evidence to speed up payment of assessment rate employment n support. Bit of a backwards step for early disclosure of additional evidence as Work n Pensions internal target for reconsiderations with additional evidence is a whopping fifty working days!

 

Assessment rate payments of employment n support (evidenced by Med 3 (unfit) notes) will almost certainly have to be requested, whether or not a different income replacement benefit has been paid during reconsideration, but won't need a new claim form. And the chaos for anyone alternating between employment n support and jobseekers doesn't bear thinking about.

 

Enjoy , Margaret.

[semayden]

:semayden:

 

Should you 'fail' your next work capability assessment, payments of employment n support will stop from the date of disallowance.

 

A little light reading;

 

https://www.gov.uk/government/publications/appeals-process-changes-for-dwp-benefits-and-child-maintenance

(Appeals reform: questions and answers)

 

The only mandatory reconsiderations done with fourteen days will be the ones where there's no extra evidence to submit or the claimant deliberately withholds additional evidence to speed up payment of assessment rate employment n support. Bit of a backwards step for early disclosure of additional evidence as Work n Pensions internal target for reconsiderations with additional evidence is a whopping fifty working days!

 

Assessment rate payments of employment n support (evidenced by Med 3 (unfit) notes) will almost certainly have to be requested, whether or not a different income replacement benefit has been paid during reconsideration, but won't need a new claim form. And the chaos for anyone alternating between employment n support and jobseekers doesn't bear thinking about.

 

Enjoy , Margaret.

 

Margaret,

The only mandatory reconsiderations done with fourteen days will be the ones where there's no extra evidence to submit or the claimant deliberately withholds additional evidence to speed up payment of assessment rate employment n support.

 

I don't understand this. Why was I told by ESA dept that it should only take 14 days max? No, all my evidence will be put in the Atos form, period. Don't know what the 'deliberately withholding' bit would encompass anyway!

 

So, it's back to early days of basic rate ESA, having to ask G/P for sicknotes? 'whether or not a different income replacement benefit has been paid during reconsideration, (Oh goody. I've really been missing those jolly occasions).

 

No, if I can manage it (not sure how yet) I had already figured that trying for JSA while fighting for ESA could cause havoc for weeks if not months afterward. Mind you, will I lose Housing benefit until it's all sorted out?

 

Finally, if the mandatory reconsideration goes in my favour (well, a girl can dream), will I get backdated of all benefits?

 

Collapsing into bed now, my brain is reeling. I didn't know they'd changed requirements in this last year. Chin up!

[**Margaret**]

:semayden:

 

The fourteen days is Esther McVey's (Minister of State for Employment) best guess for, an uncomplicated by additional evidence, mandatory reconsideration. Faced with up to fifty working days for mandatory reconsideration with additional evidence (decision makers have to allow one month for it to be sourced) some claimants who've no faith in 'get it right first time' , or for whom Atos lose/don't pass on evidence to Work n Pensions, will put off seeking/sending extra copies of supportive evidence from their own healthcare professionals/social workers/carers until they've got assessment rate employment n support into payment.

 

Housing benefit depends on low income rather than entitlement to other benefits. If you declare every change of circumstances to your local authority, as and when it happens, housing benefit may be interrupted but entitlement should continue.

 

Should you 'fail' your next work capability assessment, which isn't a foregone conclusion, employment n support with the awarded component would be backdated to the date of disallowance if the decision was revised at mandatory reconsideration.

 

Best wishes, Margaret.

Edited December 7, 2013 by **Margaret**

[semayden]

Thanks very much for your full reply, Margaret. I think it's all beginning to sink in now!!

 

So, the stage at which to fight the hardest is the first stage of completing the Atos form? Presumably, my G/P's contribution would have a major clout? And would the last Tribunal decision (which went in my favour) be worth enclosing?

[reallymadwoman]

If you don't send the last tribunal's decision, for all ATOS know their last report was perfectly accurate ......

[semayden]

If you don't send the last tribunal's decision, for all ATOS know their last report was perfectly accurate ......

 

Do you know, I really am slow on the uptake these days! Of course, that makes perfect sense... I think I'm displaying what is known as 'Fibro fog'! Thanks.

[rds60h]

Sorry if this is a bit late, but as reallymadwoman says

 

 

Regardless of whether the time for reassessment runs from the date of the original decision or the date of the tribunal decision - and which you are told does seem to depend on which office/decision maker you ask - the bottom line is that it is a recommendation and DWP can follow or ignore it at their will. When they want to reassess you, they will however long has passed since your last assessment. There is actually no point worrying about when it will happen since no one can predict when that will be.

 

 

It is only a recommendation, but it should still be taken into account because it is a recommendation from a Court !

 

 

Despite swinginapig having experienced and been advised thus...........

the Judges reccomendation of leaving you alone for 12 months starts from the original DWP decision and not the Tribunal date, you say your payments were backdated to the Atos medical, the Judges appeal notice also backdates to that same date, so your 12 months starts from the Atos medical, thats why I said your next assessment with Atos if one is required could be anytime in the near future.

 

 

I have also been through a similar situation where I waited 2 years for the Tribunal, which found in my favour and recommended at least 2 years before next assessment.

About 2 or 3 weeks after I received an ESA50 form and letter requesting me to attend an ATOS assessment, I had used an Advocate throughout my ordeal and he had attended the Tribunal so I phoned him and told him about the letter.

He said that what ridiculous and that he would get onto it, the following day I received a phone call from DWP who apologised for upsetting me by sending the letter and that it had only been sent to see if I should be applying for any other benefits (yeah.....right !) and that if I did not wish to go through with this assessment just attach a note to the forms stating her name and the phone call and state that I did not wish to attend this assessment, which I did and I have not had a problem since.

Maybe it was the fact that I had an Advocate doing my questioning of "what the hell was going on" that made the difference to the outcome.

[reallymadwoman]

The latest WCA review has recommended that DWP do follow tribunal's recommendations for the timing of a review and leave at least 6 months between tribunal and reassessment.