Tribunal 'partial victory' placed in WRAG.

[estellyn]

Ok, what you need to focus on is the grounds that you feel you qualified for the support group on, and provided evidence for.

 

 

So first tell us what the grounds were and summarise what evidence you provided to the Tribunal (both written and oral).

[estellyn]

Thank you both, very much for responding.

 

Greatly appreciated, and will attempt to respond tomorrow.

 

The only evidence provided at the tribunal was written, they negated the need for any oral evidence, which could very well be a procedural impropriety, I am able to use the RBL ''independent living'' team to attend my tribunal, but once again, these are people who Know nothing about me and are merely in attendance as my ''appropriate adult''.

 

 

Are you saying they asked you nothing at the Tribunal?

[estellyn]

Does the statement of reasons say they considered support group at all for you, and give reasons as to why they discounted it?

[estellyn]

What grounds do you think you qualify for the support group under?

 

 

The SoR blurb mentioned 'those representing' - who was representing you, and did they make a case for support group in the written materials?

[estellyn]

In the written materials from Headway yes they did.

 

But at the actual tribunal, I was never asked anything and neither was the RBL rep, it was one way traffic!

 

 

So what grounds were argued in the written materials - which support group descriptor or reg 29/35 etc?

[estellyn]

But no mention in the SoR that 29/35 were considered by the Tribunal?

[estellyn]

It sounds like you have a few avenues to pursue to UT, but as I can't see all the evidence or the SoR, I can't be very detailed.

 

 

Firstly, reg 29 isn't applicable if you score enough points for WRAG, but reg 35 is, and there really needs to have been some discussion in the SoR as to why the arguments made by your rep in writing aren't applicable to you - otherwise it's insufficient finding of fact.

 

 

Were arguments made by your rep for any support group descriptors and if so, were the reasons not to give you those points discussed in the SoR?

 

 

Is there any discussion as to why your eligibility for support group was basically made on paper, rather than in an oral hearing as you requested and were entitled to?

 

 

It looks like in considering the support group, in the paragraph you posted, that they considered the descriptors involving 'appropriateness of behaviour with others' and 'coping with social engagements' - are these the only descriptors you scored points on, or did you score points on any other descriptors?

 

 

ETA: Also if relying on information provided from 2006, rather than give you a full oral hearing, then this may also be very relevant.

 

 

But I should point out, that whatever advice you get here, you will need to get an experienced welfare rights adviser to help with an UT appeal - you may qualify for legal aid for this dependant on your household income.

 

 

Also is there a reason you are not getting income based ESA, for instance working partner, too much capital or too much household income to qualify?

[estellyn]

Yes, someone who can actually see your full appeal materials including submission and evidence, and read the SoR will be able to give you a better idea of whether you have a case.

 

 

All I can say is that if there isn't sufficient explanation as to why support group wasn't applicable to you, or if the evidence they have used is out of date (rather than have the oral hearing and ask you in person) then you may well have a case.

 

 

By all means scan the SoR if you want to and can take out identifiers, I'm happy to take a look.

[estellyn]

[ATTACH=CONFIG]50278[/ATTACH]School boy error!

 

Hopefully the scans have uploaded, and suitably redacted..

 

 

I had a quick read. As I said, it is hard to without the evidence that they relied on to make the decision.

 

 

1) Was any of the evidence they used to justify their decision refuted in the submission provided to the Tribunal? For instance the activities that it is stated that you do or the frequency that you do it, for instance the pub, yoga, gym?

 

 

2) I can't see their justification for the coping with change descriptor - not that this would have an effect on support group, they've just not backed up their reasoning properly on that.

 

 

3) Are there reasons why you don't have input for your issues any more, as stated in 17, and were any reasons given in your submission.

 

 

4) What reg 35 reasons were given in your submission for not being able to undertake work related activity.

 

 

5) when and in what context did the GP say work and training would help?

[estellyn]

Also re the evidence they have relied on from 2006/7, it sounds as if it was some sort of assessment of your cognitive abilities - unless you can show that there has been some change since, then it is reasonable to use that as an indication of the level of brain injury caused by the accident.

 

 

Was there any other evidence of new issues - maybe caused by depression or deterioration?

[estellyn]

And the activities the SoR stated you do - gym, yoga, pub - are these things you put in the submission or are they from the HCP report, and if so, how far have they been misinterpreted?

 

 

also, did you provide more current evidence from Headly Court about your brain injury and deficits?

[estellyn]

Gym I do as it helps with my depression, although it really does depend on how I feel when I wake up.

Yoga I've not done for a long while, I possibly wasn't even doing it when I had my HCP & said I was??

Pub, yes, but this is meant to broaden my social circle which was recommended my the OT...

 

Sorry, I feel like your sitting there frustrated and having to tease the answers out of me!

It's at times like this I feel so bloody inadequate and dumb. I don't want to keep being reminded of the person I used to be, I really just want to be left alone,

let me get on with it, I was doing fine until they started rattling my cage and have me justify my injuries, absolute ****....

 

When the FTT asked me for permission to get my GP's notes, I am assuming that they had all of the ones from Headley Court also, however on looking through the notes again there doesn't seem to be anything from them?

 

 

I understand your frustration and really sympathise. Don't feel bad, conversations pretty much used to go the same way with all my clients - the reason they and you need help is you don't know the info that's important and the stuff that isn't.

 

 

I think there is a small possibility with the procedural issue of not having an oral hearing - making the decision on paper, and the fact that the statement of reasons contradicts your submission and says there is no argument for support group when there was, which means it should have been investigated further at the oral hearing where more info on your capabilities may well have been forthcoming. Normally I would make a stern warning to a client that taking it further could result in a set aside and a new hearing which risks the current award, but as you are not receiving anything you have nothing to lose really.

 

 

As well as requesting permission to appeal to UT and arguing why, I would also be requesting a set aside and new hearing due to your not having the full hearing previously. Not sure on your odds, but I would say slim.

 

 

Another thing you can do, is get together all relevant evidence, get some current info on your capabilities - get some assessments done or see some professionals. Put together a coherent reg 35 argument and then request a supersession from the DWP based on your current capabilities. As you're not actually receiving anything, there is no risk to any benefit in payment - and you have said your condition has worsened due to the stress of the appeal - so if you can get some professional evidence to concur, you may have a chance going this route.

 

 

It's a double pronged attack, but a reg 35 argument is a difficult one to make and has a low rate of success, so it's important to get some professional help - you can't do an UT appeal without it, and it would also help with a supersession.

 

 

But be aware, a professional with all of your info in front of them may see things differently, and decide that you don't have an UT case, so prepare yourself for that possibility.

[estellyn]

Glad you've got some experienced help in your corner - though remember that most UT decisions are made on paper, so the paper argument to the UT needs to be comprehensive and thorough.

 

Good luck!

[estellyn]

The effect of the set aside is to make null and void the previous ftt decision, so in theory yes, you should go back on appeal rate esa while waiting for the next appeal hearing. However, I don't know what's being done in practice. Your best action would be to write a letter to the DWP stating the appeal decision has been set aside and requesting reinstatement of appeal rate esa until the next hearing, enclosing a copy of the set aside decision.

[estellyn]

:Bazooka Boo:

 

And back to your questions in #44;

 

estellyn's advice would be correct, except that by now you've almost certainly received the time limited to three hundred and sixty-five days contribution flavour payments of employment n support with the work related activity component. And unfortunately, from what you've written earlier in the thread, you aren't entitled to an income flavour award cos of your military pension.

 

Should the newly constituted first tier tribunal uphold your appeal, you'll be entitled to contribution flavour employment n support with the support component at least until the outcome of the new ESA50 and work capability assessment. With arrears backdated to the decision date of your conversion award.

 

Unlikely to be a connection between the set aside and reassessment for your award of ESA credits cos of limited capability for work. It's a common scenario with some reassessments and appeals still taking forever.

 

Best wishes, Margaret.

 

 

 

 

 

 

 

Thanks for additional info, Margaret, wasn't aware the cont allowance was exhausted.

[estellyn]

I'm not sure if I'm misunderstanding what you're going on about:

 

Here's what is relevant about NI credits with regards to ESA:

 

While on ESA you get an NI credit every week, plus you also get your normal benefit.

 

When put on contribution based wrag, your benefit is no longer paid after 365 days, HOWEVER, your NI credits continue to be paid every week that you qualify as being in wrag. If you don't attend an assessment, wrag ends and NI credits end. You can supplement NI credits yourself if you want to.

 

If you're over 63 (I think) then you are credited with NI credits anyway, automatically.

[estellyn]

So you are currently in wrag?

[estellyn]

I'm still confused.

 

If a fTT put you in wrag then you should stay in wrag unless there is a change of decision - for instance if you fail, or don't turn up for a wca assessment. You wouldn't receive any money if you've been on wrag more than 365 days, but you should receive ni credits, and you should continue to be assessed and comply with assessments.

 

If your claim was ended in some way - do you know how? Then why are you being sent esa50's? You should only be getting them if you are still considered to have an open claim and be in wrag. Have you called and checked the status of your claim?

[estellyn]

Who did you speak to on Thursday - was it the phone monkey 'helpline' worker, or was it a decision maker? To get proper clarification it would need to be a call back from a decision maker. It's pretty important to be certain, because if your claim is still live and you refuse to be reassessed then any new FTT decision will only run up to when your claim ends (when you fail to attend the wca).

[estellyn]

a new assessment will not affect backpay, the appeal decision will apply up to the date of the new decision following assessment.

 

sometimes they do have an assessment without an esa50, but it might be worth your while to put all of the descriptors including support group that you meet with info down on paper for the assessment.

 

If you don't attend the assessment, any appeal decision will only apply until the decision that you failed to attend the assessment.

[estellyn]

Congrats on the win. But sorry, yes, you still have to attend.

[estellyn]

Yes cheers, I have just realised that.........won't get too down about it now though.

 

As I can't see how they can suddenly place me in the WRAG if after the last three years they have suddenly come to their senses and placed me in SG....

 

It was WFI I was getting confused with!

 

So even though you're in SG, you still have to attend WCA?

Do these get given a 'prognosis' too?

 

Well, they set a time to be reassessed and yes 'prognosis'. I'm usually assessed every couple of years, and was supposed to be reassessed a while ago, but have benefited from ATOS losing the plot and being replaced - I expect my ESA50 will be through the letterbox soon.

[estellyn]

at least you'll have the back pay to be a bit of a cushion if they chuck you back in wrag again.

[estellyn]

Arrears payments of benefits aren't taking into account when calculating hb, so you're fine with that.

[estellyn]

sorry to tell you this, but you should still attend the wca. You risk your benefit being stopped if you don't attend and would probably be due for reassessment anyway even if you had been initially put in support group. Waiting for a decision notice on an appeal isn't good cause not to attend.

 

I understand that after the long fight, you don't want to be put in the position of having to fight again - but my concern for you is that if you don't attend you will have a completely different (and in fact harder) fight on your hands.

 

It is of course up to you.