ESA Appeal Declined

[rapt0r]

Bit of background story first,

I have had back problems going back to 2005 when I slipped 2 discs in a industrial injury at work. I have since been on ESA(before it was called ESA) then JSA and then back to ESA in Jan 2014.

 

On Wednesday this week I attended my appeal tribunal hearing for my ESA claim I made back in January 2014. I didn't see the DWP appointed 'doctor' until November 2014 and after getting the decision, zero points awarded, I appealed the decision as I believed it was wrong. Since seeing the DWP 'doctor' in November my condition has worsened to the point that I can now barely walk and am in severe pain constantly in lower back and left leg sciatica. None of that matters though as it is how my condition was in November that counts so I could have been carried into the tribunal in a coffin and it would still have seen the same outcome.

 

I would like to know if the information given to me by my appeal representative is correct and if there's any other options. I have been advised that I should:-

1. Commit fraud and apply for JSA stating that I'm fit for work and hopefully ride it out until May when I can put a new ESA claim in due to the 6 months rule.

2. Go to my doctor and make some other unrelated illness/ailment up that would stop me from working, my adviser said I should say to my Doctor I'm depressed due to this whole process!, and then start a new ESA claim using depression as the reason.

3. Do nothing and starve.

4. Something else I don't know about or been made aware of.

 

Thanks.

[honeybee13]

Hello and welcome to CAG. I expect the forum guys will be along later.

 

I thought I remembered that you can put in another claim if your condition has worsened, hopefully the guys will confirm if I'm right or not.

 

My best, HB

[rapt0r]

Thanks Honeybee, I really hope that is an option that I haven't been made aware of, will wait if any others can confirm as you say to be sure.

[honeybee13]

I hope they'll be along before long.

 

HB

[Nystagmite]

The 6 month rule doesn't apply if your condition has worsened or you're applying for a different condition.

 

Have you looked at the ESA criteria? Being unable to walk isn't enough now. You must be unable to mobilise now.

[rapt0r]

Thanks Nystagmite,

Where would I go to then to re-apply? Same place as I would as if starting a new ESA claim online?

As for your second sentence, I don't want to think about that yet, just want to get the ball rolling to minimise the gap in benefit payments and the stress.

[Nystagmite]

Yes, same place as if you were making a new claim.

[rapt0r]

Thanks, will do that first thing in the morning, and thanks for the quick replies!

[Nystagmite]

They're not open on a Staurday.

[rapt0r]

Monday it is then.

Cheers

[rapt0r]

The nightmare continues...

 

After speaking today with the ESA department it seems that because I told them that my condition had worsened after my tribunal hearing in February I can not continue to claim ESA as that claim has been closed.

 

My condition got worse in January which was inbetween the period of making the appeal (November) and my appeal hearing in February, so am I screwed for not telling them in January? I have requested a call-back from the ESA dept. in the morning and really need to know if I have a case or not, I was not told by my appointed advisor in January that I needed to notify the DWP that my condition had worsened and (obviously) the DWP wernt kind enough to let me know to tell them if my condition had worsened whilst awaiting my appeal.

 

3 month migraine this has turned out to be be and lost 11 weeks worth of ESA payements lost.

 

Thanks for any advice.

[**Margaret**]

:rapt0r:

 

Although it suits them not to, I wish Jobcentreplus would improve their training. The changes from 30 March are horribly complicated and some of the call handlers seem to be economical with the truth.

 

Declared or not, your worsened condition wouldn't have affected the outcome of your appeal. But after it was dismissed, you were and are entitled to make a new claim if your condition's deteriorated or you've a new condition. But it won't be paid, even at assessment rate, until a decision maker's satisfied there's enough evidence to consider limited capability for work.

 

The correct procedure is to reclaim now with as much evidence as you can muster from wherever you can get it. Whilst it's obvious that medical evidence will be most persuasive, Jobcentreplus have agreed to accept evidence from carers, support workers, etcetera. Oh, and claim on an ESA1 form, it'll save another argument with the call centre. You may receive an ESA83 form asking for further evidence.

 

A fit for work decision is treated as prima facia evidence of eligibility for jobseekers so long as you can demonstrate a reasonable prospect of finding some work you can do. But since 30 March claimants can forget about the six months bit before payment for a repeat claim for an unchanged condition.

 

Here's the guidance that's circulated to decision makers;

 

https://www.gov.uk/government/publications/decision-makers-guide-memos-staff-guide

(You need DMG memo 10/15)

 

Should you be forced to claim jobseekers to secure an income, DMG memo 9/15 may be of interest as well.

 

Best wishes, Margaret.

 

 

 

 

 

 

 

 

 

 

 

 

[speedfreek]

Nov 2014 decision made it's now May!

 

Dec Jan Feb Mar April May so what date exactly in Nov?

 

New rules do not apply as original decision was before 30th March 2015. The old 6 month rule still does but......

 

Declared or not, your worsened condition wouldn't have affected the outcome of your appeal. But after it was dismissed, you were and are entitled to make a new claim if your condition's deteriorated or you've a new condition. But it won't be paid, even at assessment rate, until a decision maker's satisfied there's enough evidence to consider limited capability for work.

 

This is not correct (sorry a bit harsh it is correct but needs an addendum to what you should have done) ... You should have lodged a new claim as soon as you had evidence of deterioration. Although burred deep in some legislation somewhere you can have multiple ESA claims open at the same time. You can even throw in a new claim immediately after you've submitted the 1st and well before the determination or assessment of the 1st.

 

Antone knows the procedural stuff which is basically it's all treated as one big single claim split into separate parts but to us each application appears as a separate entity.

 

Don't kick your self as it's confusing, not very well publicised and the ESA helpline staff unless you're lucky will not know!

 

Now the question is what is the date on the original decision letter?

 

The next question is how badly do you need money?

 

If you wait for the full 6 months to pass you can submit a new claim and it will be paid immediately.

 

If you submit a claim before that date you will not receive payment until a decision is made! If that decision is still negative then you will not be paid until after Mandatory Reconsideration and your appeal has been accepted by the Tribunal Service.

 

Margaret Antone would there be any mileage in waiting the full 6 months (so they get payment) then asking for the full 3 month backdate due to bad advice by the DWP?

[rapt0r]

Hi Margeret, well after a(nother) sleepless night, guess what, they never phoned me back before 9:30 this morning, or at any time today, as they promised:evil:

I waited until 12ish today before I rang up the new ESA claims line and started a new claim dated from this Monday the 4th as the decision about my last claim, before I made the appeal, was made on the 4th November last year. I hope that is correct as from what I've read it's 6 months from the date that the original decision was made before you can claim again???

 

 

Ongoing story if you wish to read.

After my tribunal on the 18th Feb I was advised by my Appeal Rep to try to claim JSA which I did on the 19th by ringing them up and was obviously told that as I wasn't fit for work I couldn't claim JSA, I then phoned up the ESA on the 25th after visiting this forum and being advised that I could re-claim ESA due to my condition worsening. When making the claim I made it very clear several times to the guy I spoke to that my condition had worsened and he said after a bit of uncertainty that I should make a new claim which we did.

 

I also attended the appointment with my neurosurgeon a few day later on the 28th Feb. Got the diagnosis through the post on the 10th March stating I have Degenerative Lumbar Spine Disease and the back pain and sciatica that goes with it.

 

Then on the 16th March I recieved a letter back from the ESA saying 'Following the work capability Assessment medical it has been decided you are fit for work bla bla bla." Migraine ensues...

 

I then on the 21st March wrote a letter and sent it recorded delivey back to the person who had sent me the 1 above, with a copy of the report from the neurosurgeon and another sicknote from my doctor. My letter basically explained my situation that I had been to tribunal and it hadn't gone in my favour and that I had been advised that because my condition had worsened I believed I could carry on claiming ESA.

 

Anyway fast-forward to yesterday, and after 6 weeks Im wondering what the delay is, perhaps they were waiting to hear back from my Doctor? I thought, or if they had even received my letter, which according to Royal Mail tracking and a signature they had on the 27th March. So yesterday when speaking to the chap I told him I had sent a letter to them and I had proof of delivery and a signature of the person who had recieved it but according to them they hadn't got a letter from me and then arranged for someone to call me back today...

 

 

 

So thats where I'm upto and yes I agree the Jobcentre/ESA call-staff you ring up to make a claim with or discuss a current claim with are absolutely clueless, and that's being polite!

 

*just seen your reply Speedfreak as I was typing the above

yes very confusing

yep as soon as I got the evidence back from the neurosurgen was when I wrote the letter they are claiming not to have recieved.

I am OK for now moneywise but it is the annoyance of losing out 11 weeks worth of payments that I really would like if I am entitled to it and not being called back today is even more annoying

Edited May 6, 2015 by rapt0r
Speedfreaks posting

[**Margaret**]

:speedfreek:

 

Yes I know it's possible to have more than one claim on the go but, as rapt0r didn't submit one at the time, I didn't want to further complicate an already poorly understood bit of legislation. Understand where you're coming from cos as I remember it, you've benefited from the previous legislation that allowed endless looping round the system.

 

Coincidentally I discussed this mess with a friend yesterday. If we've interpreted the amended legislation correctly it affects repeat claims made on or after 30 March 15 for the same condition , whatever the date of a previous negative determination by Jobcentreplus or a tribunal.

 

As rapt0r's now submitted a repeat claim six months after the original determination by a decision maker, guess we may find out whether there was any mileage in waiting.

 

Margaret.

 

 

 

 

 

 

[**Margaret**]

:rapt0r:

 

Well you won't have done yourself any harm by getting them to accept a new claim. That's half the battle at the moment. Unfortunately, from my interpretation of the legislation that applies from 30 March 15 (did you read the link in #12?) you won't be treated as having limited capability for work, or paid assessment rate, unless or until a decision maker considers there's a realistic prospect of a different outcome decision this time. In due course you should receive a statement of your claim. Return a copy of it to Jobcentreplus, with copies of the neurosurgeon's letter, and your 'signed for' delivery paperwork. Not quite what speedfreek had in mind but proof that Jobcentreplus received and lost some paperwork should be good cause for backdating the claim if it's paid.

 

Please come back if you've further specific questions cos I'm happy to try and answer them. But I don't want to further clutter this thread with detail that may not be relevant to your situation.

 

Best wishes, Margaret.