JSA backdating whilst in ESA appeal.

[Jim4500]

6 months a go I had an ATOS WCA. I was ill and unable to attend. I contacted ATOS to let them know before the WCA and they requested a letter from GP confirming this. I visited my GP who after an examination agreed to send a letter to this effect to ATOS on my behalf.

 

A month latter I received a letter informing me my ESA had been ended due to failure to attend and not supplying any reason as to why. I contacted my surgery, who had told me the letter had gone, and after some time it was discovered the letter had been left behind the reception of a different surgery to the one I attend, and never posted. I was told by the ESA advisers I would have to begin a appeal in order to send this letter in. This is what I did.

 

I had appealed before and had received the standard appeal rate whilst waiting for the appeal, once the appeal had been processed. It took 4 months for my appeal to be processed. During this time I had been told that to make any new claim would invalidate my appeal and would save no time regardless due to the backlog. When my claim was processed it was made clear that I would receive no payments whilst my appeal was in process.

 

I contacted the CAB and after a brief interview gained a full consultation. This took a month. The CAB informed me that I could, in fact, claim JSA whilst my appeal was in process without it affecting my appeal, despite the obvious conflicting requirements of JSA and ESA.

 

This has left me with a 6 month deficit of payments which I owe out to my utilities providers and landlord, for which I am being taken to court. I have been told that whilst I can apply for backdating, it simply won't happen. They would also require a 6 month history of active job seeking, something there was no way for me to be aware I needed to be compiling at the time.

 

I'm at a loss as to see how I would have been able to avoid this situation. I have made another appointment at the CAB but I'm not sure what they can do. Is this simply the way the system works?

Edited November 13, 2013 by Jim4500

[estellyn]

Firstly, a new claim wouldn't invalidate your appeal, you were wrongly advised there. A new claim just wouldn't be paid until you had a new WCA, - who advised you not to claim?

 

JSA backdating is notoriously hard to get, and no, wouldn't be awarded in your situation.

 

Regardless of ESA, JSA, or no award, you should still have been able to claim housing benefit and council tax reduction.

[Jim4500]

Firstly, a new claim wouldn't invalidate your appeal, you were wrongly advised there. A new claim just wouldn't be paid until you had a new WCA, - who advised you not to claim?

 

JSA backdating is notoriously hard to get, and no, wouldn't be awarded in your situation.

 

Regardless of ESA, JSA, or no award, you should still have been able to claim housing benefit and council tax reduction.

 

I have been able to recently get my Housing benefit and council tax reduction paid and backdated. Although it only covers £314 of my £350 rent so I'm still not up to date.

 

I was advised not to claim by an ESA adviser. I actually started a claim and then was advised that it would invalidate my appeal so rang up to cancel it.

 

It turns out that I wasn't awarded the appeal rate due to not having "good cause" despite supplying a letter from my GP. This decision wasn't taken for over a month after I appealed and then I wasn't notified in anyway. ESA advisers just kept telling me my appeal was in processing and they had no access to any other information.

 

I was quite obviously distressed as I had no income and was constantly asking them what my options were and at no time ever did they mentioned I should claim JSA or that I wouldn't receive the appeal rate.

 

Even now the JSA advisers say it's nothing to do with them and the ESA advisers say "Ignorance is no excuse.". I really don't know what to do, I owe over £1000 bills that I just have no way to pay and it seems there's just nothing I can do. I'm really just in a state of disbelief that this kind of situation can arise. I just don't see what I'm supposed to do.

Edited November 15, 2013 by Jim4500

[**Margaret**]

:Jim4500:

 

Despite quite a lot of practice with 'unable to attend' Atos, I've never known them to ask for a doctor's letter. Apart from anything else, an ESA55 file would be returned to Jobcentreplus before they received the letter, and they're worse than useless at sending anything (letters, important medical evidence) on to Jobcentreplus. Even if a claimant's doctor gets a letter to them!

 

If this was your first 'unable to attend' Atos should have offered you a further appointment. If not, Atos should have sent your file back to Jobcentreplus, and left you to argue good cause for non attendance with a decision maker. Via a BF223 letter (of which there's an example below) sent out by Atos, for return to Jobcentreplus.

 

https://www.whatdotheyknow.com/request/mec_administration_guide_v6#incoming-354324

 

Unfortunately you were badly misadvised about alternative claims pending the outcome of an appeal. For the same condition (within six months of disallowance for alleged 'failure to attend') employment n support can be claimed, but not paid until there's a determination of limited capability for work, usually via an Atos assessment. Despite the obvious contradictions jobseekers can be paid cos you're treated as fit for work, but not knowing you could claim isn't reason for it to be backdated.

 

Assessment rate employment n support allowance pending an appeal hearing is only payable if the dispute concerns a determination of fit for work after a work capability assessment.

 

(A claimant whose good cause for 'failure to attend' is accepted doesn't need assessment rate pending appeal. Either there's no need for an appeal, or if one's been lodged it lapses. )

 

Soon as it's six months since the date of the decision to disallow your employment n support, you can reclaim for the same condition and be paid from the start of the claim. Without it affecting an appeal. If that's too long to wait, consider if you can cope with a jobseekers agreement for a few weeks. Takes ten to fifteen working days to get either benefit into payment.

 

From what you've written I can't work out whether you've a live appeal against the alleged 'failure to attend';

 

Have you lodged a formal written appeal? Via letter or GL24 appeal form?

 

You say you weren't notified that you didn't have good cause for 'failure to attend'. Have you received a 'bundle' of papers from Jobcentreplus or a hearing enquiry form (example below) from the Tribunals Service?

 

http://www.justice.gov.uk/downloads/forms/tribunals/sscs/TCEEnquiryFormAppellant.pdf

 

If you've a live appeal against the disallowance for 'failure to attend' we can help you to prepare for the hearing. Alternatively, we can help you to lodge a late appeal. And a possible complaint against Jobcentreplus for maladministration if you've enough evidence, but it's difficult to prove.

 

Sincerely, Margaret.

Edited November 16, 2013 by **Margaret**