ESA claim refused

[jason2723637]

really talk about a quick turn around don't know why they find its fine to change rules like that all off a sudden under the fake veil of austerity

 

also edited to add- sorry marshmallow I did not know about the new 6 month rule see if your son applies under the new rules ie if hes condition has got a lot worse (don't know what the hell a lot worse actually means as hes unfit for work and that's the end of it as tommy stated its IDS!!) BUT see also what happens with the or if he can still do the ESA appeal route as these turn over the original decision to find him fit for work in most cases.

 

oh and get some advice for him from CAB or help from a welfare officer

[tommy456]

I just thought i would highlight the rules around ESA claims that started before 30th march 15

Note that the amended rules apply only where the claimant is now appealing against a WCA failure following a claim made on or after 30 March. So a claimant who claimed ESA before 30 March and appeals against a WCA failure on that claim can get ESA pending appeals under the old rules – ie, it does not matter if it was a second or subsequent WCA failure.

 

This i think should apply to my esa claim that i am appealing as my failed WCA was back in August 2014 , So if i were to loose the appeal i should be able to re claim ESA for the same health issues?

[jason2723637]

sorry don't want to hijack the thread but as our query is relevant to the OP if her sons claim was prior to march 2015 if tommy thinking is right then I see im in the same book so wondering the same thing as you my WCA was after march this year BUT my actual claim was first made Nov 2014 so we can re-claim ESA for same health issue if appeal should fail (six month rule) or by the wording is it only for getting ESA pending appeal for subsequent appeals? though im optimistic my appeal will overturn the original decision to.

 

also edited to add- if it is for only ESA pending appeal then how do you appeal ESA to start with if you CANT reclaim to begin with? (contradiction?)

[tommy456]

From some of the wording someone can re claim esa for the same medical conditions but the wouldn't get paid until the outcome of the WCA should it be found in their favour, maybe

 

When you appeal you don't start a new esa claim, you basically continue to be paid under the same claim up to when the tribunal decision hear the case and make their decision

 

 

The Department notes the observations made by the Committee as to the drafting of the “Application” provision (Regulation 2). The policy intent has always been that the Regulations apply solely to those making a repeat claim on or after the 30 March 2015, and we have now made amendments which we hope make it clear that this is the case.

So all esa claims made on or after 30 march 15 are subject to the new rules, which are the same as the old rules upto the tribunal, if upheld new rules apply to regarding re claiming esa ,

So in theory at least all those claims started before 30 march 15 are still subject to the old rules, therefore they can following failing at appeal re claim esa for the same medical conditions if six months have elapsed from the WCA date ?

 

I said in theory because i have no doubt that due to lack of training those who are entitled to re claim esa under the old rules, will be denied this by DWP So MR it and appeal to tribunal, though anyone doing that would have to claim jsa to get any money

[jason2723637]

hi tommy so you saying you can make an MR and appeal immediately when trying to re-claim ESA over the phone? but have to claim jsa to get any money

 

also from another forum seems old rules don't apply even if claim made before 30 march 2015 -

 

 

jasonb1123837 wrote:

This is regards to new regulations of the six month rule where since 30 March 2105 the six month rules for reclaims after losing an appeal (ie for the same health condition) does no longer apply. Unless the current condition has got lot worse but what does this mean as if your still unfit for work with same condition how can you not reclaim ESA?

 

Also does this new regulation abolishing the 6 month rule only apply to first ESA claims made on or after March this year? my WCA was after march this year BUT my actual claim was first made Nov 2014 so can I re-claim ESA for same health issue if appeal should fail (six month rule)? or by the wording of this new regulation is it only for getting ESA pending appeal for subsequent appeals? though im optimistic my appeal will overturn the original decision.

 

also if it is for only ESA pending appeal then how do you appeal ESA to start with if you CANT reclaim to begin with? (contradiction?)

 

thanks

 

Hi jb,

 

 

"This is regards to new regulations of the six month rule where since 30 March 2105 the six month rules for reclaims after losing an appeal (ie for the same health condition) does no longer apply. Unless the current condition has got lot worse but what does this mean as if your still unfit for work with same condition how can you not reclaim ESA?"

 

I am afraid that if you have exhausted your appeal rights and The Tribunal still find that you are fit for work, you can no longer make a repeat claim for ESA unless you can show that you are now suffering with different medical conditions, or that your existing medical conditions have "significantly worsened" to such an extent that you would now pass the ESA WCA, where you had not done so before, thus resulting in a WRAG or SG award.

 

When you re-claimed, The ESA DM would look at your repeat claim to see whether they considered that you could now score the requisite minimum 15 points for a WRAG award. (LCW)

 

The new or significant worsening of your condition must have occurred since the initial date of your fit for work decision.

 

Your only other option then would be to make a claim for JSA.

 

New rules regarding extended periods of sickness were brought in for JSA also on 30/03/15.

 

It is now possible to have an extended period of sickness for up to 13 weeks whilst in receipt of JSA.

 

What you could not do, is present a fit note when initially making a JSA claim, they would not accept your claim.

 

Your JSA would have to be up and running.

 

See : DM Guidance m9-15 on this.

 

 

"Also does this new regulation abolishing the 6 month rule only apply to first ESA claims made on or after March this year? my WCA was after march this year BUT my actual claim was first made Nov 2014 so can I re-claim ESA for same health issue if appeal should fail (six month rule)? or by the wording of this new regulation is it only for getting ESA pending appeal for subsequent appeals? though im optimistic my appeal will overturn the original decision."

 

It doesn't matter what date your initial claim was made that resulted in the fit for work decision.

 

The important issue is that your fresh repeat ESA claim would be made after the 30/03/15, therefore the "new" rules would still apply.

 

The only circumstances where the old 6 months rule still applies is where a claimant has been found fit for work due to failure to return their ESA50 Questionnaire, or failure to take part in a face to face assessment.

 

N.B. There is nothing to stop you making a "repeat claim", it is whether they will pay you that is at issue !!

 

 

"also if it is for only ESA pending appeal then how do you appeal ESA to start with if you CANT reclaim to begin with? (contradiction?)"

 

If this appeal was for a fit for work decision made on a claim made after 30/03/15, and it was your first fit for work decision, you would receive Assessment Rate ESA once you have gone through the MR process and your appeal is accepted.

 

If this was a claim made after 30/03/15, and you had had a fit for work decision on a previous claim, you would not receive Assessment Rate ESA whilst awaiting the appeal hearing.

 

This scenario may occur where you have been allowed to make a repeat claim for ESA post 30/03/15 due to The DM accepting that you have a different or "significantly worsening" condition, but you still fail the WCA and are again found fit for work even when taking into account the different or "significantly worsening" condition.

 

Information on the following links may help with your understanding of the 30/03/15 rules :

 

ESA and "significant worsening" CPAG.

 

ESA and abolition of the "six month rule" CPAG.

 

I hope that helps.

 

Hopefully, The Tribunal will make a decision in your favour and there will be no need to worry about the above.

 

bro58

[antone]

Good info from friend Bro58 there, whoever he or she may be.

 

Basically, if you fail your first WCA, you can still receive ESA while your appeal is pending (once the Mandatory Reconsideration process is complete). But if you don't appeal, or the Tribunal finds against you, and you then make a second claim for ESA, you will not be paid until you get a favourable WCA decision. Prior to the new rules, you would not be paid if the new claim was made within six months of the WCA failure. As of 30/03/15, the six month rule no longer applies, it seems - you will not be paid if you are claiming for the same condition (which has not worsened) as your previous claim even if more than six months has passed.

 

What this means is that you can't be paid ESA on appeal if you're appealing a second adverse WCA decision under these circumstances.

[jason2723637]

Hi antone what about this taken form cpag site about ESA pending appeal under the new rules ie since March 2015 -

 

Where a WCA failure is subsequently over-turned by a tribunal (or court), it results in a decision that the WCA is satisfied – ie, that the claimant does have limited capability for work. So, where a claimant has successfully appealed against a WCA failure, it may well mean that the previous decision is now that the WCA is satisfied. In that case, the claimant can be entitled to ESA pending appeal for a subsequent WCA failure, even if her/his condition has not changed.7

 

Note that the amended rules apply only where the claimant is now appealing against a WCA failure following a claim made on or after 30 March. So a claimant who claimed ESA before 30 March and appeals against a WCA failure on that claim can get ESA pending appeals under the old rules – ie, it does not matter if it was a second or subsequent WCA failure.

 

 

________________

 

especially focus on the last part - "Note that the amended rules apply only where the claimant is now appealing against a WCA failure following a claim made on or after 30 March. So a claimant who claimed ESA before 30 March and appeals against a WCA failure on that claim can get ESA pending appeals under the old rules – ie, it does not matter if it was a second or subsequent WCA failure."

 

so this means what? thanks

 

 

http://www.cpag.org.uk/content/esa-and-abolition-six-month-rule

Edited November 15, 2015 by honeybee13
Reducing quoted content.

[mashmallow]

I have read all the replies on this post, my sons mandatory re-consideration was refused so now will have to go through the HM procedure he has a sick note stating rehabilitation within the community has anyone any input to what to write down for his appeal both me and him are not very clued up what to write so it looks professional I have 10 days before the cur off date and need to get it sent off no later then the 11 of December because of Christmas post ect I will have to use recorded delivery to be safe. Please can someone help.

 

 

Thanks

 

 

mashmallow

[jason2723637]

on the SSCS1 form in the relevant section you start like this -

 

 

 

"FOLLOWING THE MANDATORY RECONSIDERATION WHICH UPHELD THE ORIGINAL DECISION.

 

I WISH TO APPEAL AGAINST THE DECISION THAT I DO NOT HAVE LIMITED CAPABILITY FOR WORK.

 

I CONSIDER THAT I PROVIDED ENOUGH EVIDENCE FOR A FINDING TO BE MADE THAT I DO HAVE LIMITED CAPABILITY FOR WORK.

 

 

 

I DO NOT CONSIDER THAT THE DECISION MAKER TOOK FULL ACCOUNT OF THE SEVERITY OF MY CONDITION OR OF

 

THE WAY THAT IT AFFECTS MY EVERYDAY ACTIVITIES AND BODILY FUNCTIONS."

 

then do the following -

as far as I understand (is what I did) he can write down how him being on methadone aka (rehab within the community) effects him and his symptoms like for example insomnia/sleep pattern disorder, lethargy and expand on his symptoms there's a template as well on this site if he can he can also look at what the WCA decision letter which gave him zero points (or points under 15) said and go though that letter and pick holes in what they've said about him.

 

also remember to get supporting evidence at some point ie from his GP and from the rehab place (letters from them)

 

also if he's on sleep tabs or any other medication include that he's prescribed those from his GP for his sleep problems

 

and at the end he can add this -

 

 

"FINALLY I WISH TO HAVE AN ORAL HEARING SO THAT I CAN EXPLAIN THE FULL EFFECTS OF MY CONDITION TO A TRIBUNAL

 

AND ANSWER ANY QUESTIONS THEY MAY WISH TO ASK.

 

WHILST MY APPEAL IS BEING CONSIDERED I WISH TO REMAIN IN THE ASSESSMENT PHASE OF ESA."

[Nystagmite]

You don't need to write huge amounts of detail for now. You can send supporting evidence later.

[mashmallow]

Thanks Nystagmite

I will write what you have said that should be adequate for now, I am very gratefull for this site and respect all those who are within giving their support to people like me.

Million thanks,

 

 

Let you know as things proceed.

 

 

mashmallow

[mashmallow]

Received ESA file back, not sure what to do with it. It is copies etc of what I have sent and also records from original claim, please advice if possible.

 

 

Mashmallow

[fletch70]

Does it have in the report from the HCP who did the assessment?

 

That is what you need to focus on

 

Look where you need the points and where you believe that you have supporting evidence and focus on that.

[mashmallow]

Thanks for replying, yes it does contain the original assessment back in 2014 when he scored 0 points.

For now what is the ext course of action does he get relevant proof i.e letters from GP or Clinic etc., and send to the court now, this pack is come from the appeals section not sure of all this, or does he wait for date of hearing? Please help.

 

 

Mashmallow

[antone]

If there's evidence (GP letters and so on) that he wants the Tribunal to consider he should send it to them as soon as possible. Make sure he includes a covering note with his name and NI number, and any case reference number the Tribunal may have given him.

[fletch70]

As Antone said, send it sooner rather than later but i would try to gather all the info together so it is sent in one lot. When you are putting the grounds for the appeal focus on where points can be scored so for example ( I have no idea if this is relevant so please dont jump down my throat for making assumptions)

Activity 13: Initiating and completing personal action (which means planning, organisation, problem solving, prioritising or switching tasks)

Because of the medication I am on my concentration is poor.

 

Activity 14: Coping with change

I can not cope with changes to my routine, I become very upset if my day does not go to plan, I have relapsed because of unplanned changes to my routine. I lose my temper if things are not as they are supposed to be , for example if my methadone is not ready at the right time

 

Whatever the situation really is, try to link them to the descriptors. Even better if there is evidence that you provided that the HCP totally ignored

 

An example from personal experience

My hospital appointment was cancelled for the 3rd time at less than 24 hours notice, I had got so worked up about it that I retreated to my bed. I could not go to University the nest day because I was still so upset .

that shows that unplanned changes have a very negative impact , I could have added that I had drunk a large amount, or relapsed into my gambling , or if I was a recovering drug addict that I had relapsed and taken some drugs

 

 

I do hope that helps. I know how difficult it is . It will take some time to all come through

[mashmallow]

I will get a statement together asap do I send it to the court direct.

 

 

Mashmallow

[antone]

I will get a statement together asap do I send it to the court direct.

 

 

Mashmallow

 

Yes, send it direct to the court/Tribunal.

[mashmallow]

Sorry Guys to be a pain but one last question hopefully is there a standard format for the appeal? or just a written statement quoting case number, name, etc.,

 

 

Please and thanks

 

 

Mashmallow

[jason2723637]

mashmallow please talk to your CAB office as they can give you more personalized help with this

 

 

- "Sorry Guys to be a pain but one last question hopefully is there a standard format for the appeal? or just a written statement quoting case number, name, etc." - not sure what you mean once you get a letter from HMCTS saying your hearing will go ahead you can send supporting evidence the address is on the letter but ring them if unsure from my experience you first get a letter form HMCTS in 7 days or so saying they got your appeal then you get the copies (pack) from DWP with the assessment in it where your son scored zero points then you should get another letterform HMCTS saying your hearing will go ahead as an oral hearing then the last letter you receive from HMCTS is the actual date of your sons tribunal you can send the supporting evidence ie GP letter and letter from his rehab place outlining his treatment history as soon as you possibly can it best if it reaches HMCTS at least 7 days before his actual tribunal date

 

let me stress what fletch said in his post

 

 

please make sure your sons GP USES THE DESCRIPTORS IN HIS LETTER as supporting evidence as Nyst said elsewhere

GP does not just say "he has depression" as this wont help

 

 

but the actual descriptors relevant to his condition to win the tribunal he needs these IN the GPS letter like for example

e "as hes on methadone it effects his bodily functions such that he cant prepare his meals

and you go round and prepare his meals for him" etc and he needs to explain these at his tribunal