ESA - Lost Tribunal - Upper Tribunal Awarded...UT Postponed!!!!

[Max1968]

Thank you very much. I'll do that then and just include my GP's letter and letter of a re referral to the ENT. I'll keep Vemp Tests back and as you say if needed I can always highlight the bits of interest if needed.

[Max1968]

Went to sign on at the Job Centre today and the "Work Coach" asked how my job search had been going. I told her that I had just sent off my ESA Tribunal request. Whilst making small talk I just enquired as to what happens with regards to transferring back to the starting rate of ESA whilst awaiting tribunal. She said that stopped back in 2013 and when you are awaiting tribunal now you just carry on claiming JSA. I am sure I read somewhere that you claim JSA when awaiting a Mandatory reconsideration but once you are awaiting a Tribunal appeal they put you back on starting rate of ESA. Have tried googling it but can't seem to find a definitive answer. Can anyone clarify this?

[reallymadwoman]

It would be news to me if they'd stopped you going back on ESA and I'm sure I would know if they had. I doubt your work coach has a clue actually - when you prove her wrong, make sure you point it out to her. How many other people may she have put off reapplying for ESA?

[Max1968]

Do you have to reapply if going to tribunal or is it done automatically? Also if that's the case do you still have to sign on and continue job searching whilst awaiting tribunal?

[reallymadwoman]

I'm fairly sure that once your appeal is accepted (I believe you get a notice from the tribunal) you can reapply for ESA by phone, but you will need a valid fit note - I've heard that even if your previous one still covers you it can be quicker to get a new one. Once your ESA claim is accepted, your JSA claim will be closed and you will not have to jump through those hoops.

[Max1968]

Would a new claim have to be for a new/or worsening condition, or does the current condition suffice until the tribunal?

 

 

Thank you, really appreciate it.

[antone]

Would a new claim have to be for a new/or worsening condition, or does the current condition suffice until the tribunal?

 

 

Thank you, really appreciate it.

 

There's no need to demonstrate a new or worsened condition when switching back to ESA under these circumstances.

[Max1968]

Thank you for all your help. I have now received a letter regarding my Tribunal (attached) so should I now call the DWP with regard to going back on the starting rate of ESA? I have a fit note for two months.

 

 

Also does anyone know how long it can be until the Tribunal date? Thank you.

Tribunal appeal received.pdf

[antone]

Yes, you can now contact the DWP and ask to go back onto the Assessment Rate of ESA. They will want to see a copy of that letter to prove that HMCTS has accepted your appeal. You'll also need to keep your fit notes up to date, covering every day of your claim from now until the hearing date.

 

It's hard to say how long it will be before a hearing is scheduled as this can vary a lot from one part of the country to another. It would be reasonable to expect it to be several months at least.

[Nystagmite]

You can, (or it was some time ago when I was appealing DLA) also request cancellations, which means it may only take a few months.

[Max1968]

Thanks to both of you. Called the DWP this morning (guy was quite helpful as it happens) and he said to take a letter requesting to go back on ESA to the Job Centre along with copy of the Tribunals letter and my sick notes so the Job Centre can scan them and forward them to the DWP,. Have an apt at the JC on Monday.

[Max1968]

Well this gets more bizarre and annoying by the day.

 

Went to the Job Centre with letter from Tribunals Service, letter from me requesting that I am moved from JSA to ESA and two Fit Notes - one from June to July and one from July to September - so the Job Centre could scan them and send them to the DWP, in Wolverhampton or Worthing I think she said. Basically I did all as the guy from the DWP suggested on the phone Friday.

 

She was pfaffing about and when I asked for photocopies of my Fit Notes she received a phone call unrelated to me so passed me onto another woman. I asked this lady what I was to do regarding signing on now that I would be put back on a starting rate of ESA until my tribunal. She basically replied that I wouldn't be put back on ESA and would stay on JSA until my tribunal and would only go back onto ESA if I won my tribunal. She then said that it wouldn't be long and would all be sorted in a couple of weeks. I replied that I assumed a wait for a tribunal was longer than that but she said it wasn't. She then said that she would only take a copy of my July to September Fit note because apparently when on JSA you are only allowed 12 weeks (I think that's what she said) sick leave. She said that if she put through the other sick note for June and July that would take me over 12 weeks and I would lose my JSA so she said she was doing me a favour so I didn't lose my JSA,.

 

She then stated that I would have to continue with my Job search and claimant commitment until the tribunal so I continue to receive JSA. She asked how my vertigo affected my ability to work and I explained all along with how the Shaw Trust said no one would employ me because I couldn't guarantee that I wouldn't have a vertigo attack,. She then asked what all the Doctors are doing and who I am seeing and then staggeringly scoffed at the Shaw Trusts findings saying there are employers out there who would make allowances for my condition. I said "what allow me to lie down for three or four hours?" She said "yes of course". I was gobsmacked because even my best mate over the weekend in a hypothetical conversation said that he wouldn't employ me due to the vertigo risk. My best mate won't employ me, the Shaw Trust say I am unemployable and yet this work coach from the Job Centre insists plenty of employers would accommodate me?! Not sure who lives in the Fantasy World me or her?!!!!!

 

She then said that the DWP Office would ring me on my mobile sometime between now and tomorrow, I am assuming that is to confirm that they have received the documents. She then asked another colleague as to the rules and ironically it was the woman I saw last week. They both then confirmed that the rules had changed in 2013 and everyone stays on JSA upon awaiting tribunal,. She kept muttering that she had seen plenty of people in the same situation and none of them had been put back on ESA. I then asked her if I could use their PC because I wanted to prove to her that I could get starting rate ESA instead of JSA. I searched the gov.uk website and googled ESA but could find absolutely nothing official about a claimant being moved back to ESA whilst awaiting tribunal. All I really found was about a loophole being closed as to where once losing a tribunal claimants were then reapplying for ESA and going through the whole process again. This has apparently been stopped and you can now only reapply for ESA if your conditions has deteriorated badly or for a new condition.

 

With regard however to going back on ESA starting rate whilst awaiting tribunal I cannot find anything at all officially. In fact I can't even find anything that states a claimant will stay on JSA whilst awaiting tribunal, it certainly seems a massive grey area with no official word at all, at least not what I can find.

 

Can someone 100% clarify the rules with regard to this and maybe direct me to an official link because the DWP or Job Centre are certainly not going to make this easy considering I am basically taking them to an Independent Tribunal. The only way it seems that I can get off the JSA merry go round in the meantime is an official document showing that I can do this,. Their excuse for what the DWP employer told me was that he probably was going by 2013 regulations, but if this really is the case and I stay on JSA whilst awaiting tribunal what on earth was the reason for me to attend the Job Centre with copies of The Tribunals letter, my request to be moved from JSA to ESA and my Fit notes so they could scan them?! It doesn't make sense.

 

Would appreciate any help as usual.

[antone]

Grr. This sort of thing could easily be avoided if they'd just give front line Jobcentre staff some basic benefits training. What changed in 2013 was the addition of the Mandatory Reconsideration process - prior to that you could appeal directly, and the recon would be carried out automatically by the DWP prior to them sending your appeal to the tribunal. The law does not provide for the payment of ESA while the MR process is underway, which is why many people, such as yourself, are forced to claim JSA while waiting to hear the result of that process.

 

However, the entitlement to ESA at the Assessment Rate while waiting for an appeal to be heard has not been changed. The only difference is that you have to wait until you receive an adverse MR decision, and then submit the appeal to the tribunal yourself, before you can be paid ESA. You've done all of this. You can be paid ESA.

 

Now it's annoying that the JCs are passing around incorrect information, but from my knowledge of the system as a former processor, it's not surprising. However, it's not the JC staff who make decisions about entitlement and them being wrong about this doesn't affect said entitlement. Did they send off the documents as requested? If so, I'd give it a week or so then contact the processing centre by phone to see if they've been received and confirm that your request is being processed. They should close your JSA claim, restart your ESA claim and that's how things should stay (as long as you keep your fit notes up to date) until the result of your tribunal is delivered.

 

I'm in a bit of a rush right now, so I haven't had the chance to search the Decision Makers Guides, but there is more information at this source, the Child Poverty Action Group. Note that this information post-dates the change in the law in 2013.

[Max1968]

Thanks Antone. Think I have found the most "official" answer so to speak on the gov.uk website although it is dated 3rd May 2013.

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/194310/foi-1046-2013.pdf

 

I couldn't believe that there are 1161 pages in a search of ESA on that site and they are not in any order and as far as I can see you cannot filter a search into and preference order bar organisations. The one site that needs accurate, up to date, easy to understand information and it is a maze.

 

I also cannot believe that as you say JC's are handing out incorrect information, surely this is in breach of some sort of law. I mean at my JC if as the lady said she has never seen anyone on ESA starting rate awaiting tribunal then they have all been given apparently the wrong info.

 

I am being called tomorrow by the DWP. If they themselves say I have to continue claiming JSA until my Tribunal what do I say, do?

 

 

I have also decided that I am going to apply for a job at the DWP, any job. I will mention on any form my condition and when I don't make any interview I will politely request as to why I was overlooked,. Could make interesting reading.

[antone]

Well, while it's not good that front line JCP staff are getting things wrong, they can at least say that it isn't actually their area of expertise. The staff at the processing centres have no such excuse. If they tell you that you can't claim ESA while waiting for an appeal, then I think the best thing to do is to explain that this is not your understanding and could they please check again. If they're insistent, I'm not really sure what to do next. I think I'd start by writing to them and asking that they reply, in writing, with an explanation of their understanding of the law.

 

I don't think it's all that likely. Processors deal with many hundreds or thousands of claims. It's really not all that unusual, in the grand scheme of things, for someone to do what you're doing.

[jason2723637]

my understanding is the new rules that took effect after 30 March 2015 means that if this is your first WCA failure or your first claim for ESA then ESA pending appeal is paid (ie bold below)

 

 

-

 

 

The amended rules do not completely abolish ESA pending appeal. Rather, they restrict entitlement so that, unless her/his condition has changed, a claimant who has failed the WCA more than once may not be able to get ESA pending appeal, depending on the facts of her/his case.

Following the amendments, the regulations for ESA pending appeal provide that:6

 

• where a claim for ESA is made on or after 30 March 2015, and that results in a WCA failure which is appealed, if that is the claimant’s first failure of the WCA, or the first since a previous decision (including by a tribunal or court) that the WCA is satisfied, s/he can in all cases get ESA pending the appeal;
  

 

• where on a claim made on or after 30 March the WCA failure is otherwise the second or subsequent WCA failure the claimant has had, s/he can only get ESA pending appeal if her/his condition has got significantly worse or s/he has a new health condition.
  

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.

 

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

 

 

 

 

also my experience is you should get ESA paid as soon as you get a letter from HMCTS as a copy is also sent to DWP and you also get the bundle from DWP with regards to your claim ie a copy of what DWP send to HMCTS which contains a copy of your ESA 50 how you scored a copy of MR etc all you need to do is talk to ESA on the phone and send in your fit note to ESA direct ie mail handling site (recorded if you can or proof pf posting) rather then getting it scanned at your local job centre

 

 

another thing max have you got any help from CAB or welfare rights or benefit advisors? to give you best chance at appeal the grounds of appeal best fit is prob what antone and I think RMW outlined in this thread ie exceptions -

 

 

(b) you suffer from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if you were found not to have limited capability for work.

[Max1968]

Thanks to you both.

Jason yep had a lot of good advice from the CAB, suspect I may well go back to them once I receive appeal stuff from the Tribunal and DWP.

Still waiting for the DWP to call back and confirm they have received my request to go back onto ESA from JSA. Looks like I will have to call them. On top of that I am chasing a referral from my GP to the ENT service because surprise surprise I have got lost in the system so that's a month since the referral letter wasted. I seem to spend my entire life either emailing or on the phone doing other peoples jobs because they can't do them properly themselves. Pity I don't get paid for it!!! This country is quite simply a mess.

[Max1968]

Well finally got through to the DWP this afternoon and spoke to be fair to a really nice lady. She said that they had received my scanned stuff and that I would be automatically put on the starting rate of ESA until my Tribunal.

 

She advised me to sign on at the JC on Monday because it's 8 days notice on the change back to ESA and this way I wouldn't lose benefit. She also gave her name and office and informed me the phone call was being recorded in case anyone at the JC claims (as they are) that I can't go back on ESA starting rate.

 

She said according to the info at her office the Tribunal could be anything up to 6 months away. At least some of them at the DWP are helpful, she was very good and very polite to be fair. Thanks to you all as always.

Edited August 2, 2016 by honeybee13
Paras.

[antone]

I like to think I was one of the good ones when I worked there

 

Anyhow, glad to hear you made some progress - it always makes me grumpy when people give out bad information. You asked above about whether it was a breach of any law for the JCP staff to give wrong information: no, it is not a breach of the law for the staff to make mistakes. It is, however, a training issue and a policy issue (training because they should really know what they're talking about before they give what could well be taken as advice, and policy simply because it's a waste of everyone's time for them to tell people the wrong thing) and I'd be tempted to make a complaint about it.

[Max1968]

I like to think I was one of the good ones when I worked there

 

Anyhow, glad to hear you made some progress - it always makes me grumpy when people give out bad information. You asked above about whether it was a breach of any law for the JCP staff to give wrong information: no, it is not a breach of the law for the staff to make mistakes. It is, however, a training issue and a policy issue (training because they should really know what they're talking about before they give what could well be taken as advice, and policy simply because it's a waste of everyone's time for them to tell people the wrong thing) and I'd be tempted to make a complaint about it.

 

 

I am sure you were one of the good ones.

[Max1968]

I'll continue the above post here because my other disappeared into cyber space!!

 

I am tempted to complain but at the same time I'll probably be needing the Job Centre again so probably not in my interests to burn my bridges! However I will mention to my work coach on Monday that I was "disappointed" to receive incorrect advice and ask if that she can pass it on to whoever is in charge at the office.

 

What is very disappointing is how difficult it is to find the information you are looking for from an "official" source. Sites like these are fantastic but you know how places like the JC are and they only tend to accept your claims if you back them up with official sources. It took me a long time to find that document (post above) and even that is only a Q and A document from 2013. If I can struggle I can imagine how difficult it can be for people who are not up to speed with the internet, vulnerable or too ill to check for information.

 

What the Gov website needs are very clear, easy to understand Q and A under each benefit so everyone has definitive access to any possible scenario that they want to find out about. Of course we know why they don't make it easy to find things out and that's because people are nothing but statistics and the easier it is to find the correct information then the harder it becomes for the Government to hit their targets of getting people who need their support off benefits and into any old job. It's a very sad situation.

 

 

Just my theory behind it, I do like a good conspiracy theory!!

[Nystagmite]

Yes, that sounds sensible - mention you were given some incorrect information without turning it into a complaint.

[Max1968]

Yes, that sounds sensible - mention you were given some incorrect information without turning it into a complaint.

 

 

 

Oh absolutely. We all make mistakes and I think genuinely they seem unaware that this Is the case.

[Max1968]

Well once again I am confused. This morning from my Job Centre I have received Form JSA 28 (Jobseekers Allowance while you are sick) along with a copy of my fit note that I asked the JC to scan and send that over to the DWP although I do believe that they did that because I have had two texts from the DWP saying the Tribunal service has contacted them and they have 28 days to reply and will be sending everything they send to the tribunal service to me as well.

 

However under the JSA 28 tear off slip someone at the JC has completed the details giving vertigo and insomnia as a brief detail of my sickness, put 21st July 2016 down as the date I became sick (which is the date on my fit note merely covering the most recent period) and the date I think I will be well again as 21st July 2016 (again the date on the fit note but GP's can only do 2 months at a time as far as I know). They have however placed a note next to this saying "but not certain".

 

They have enclosed a slip which is handwritten saying "Please find enclosed JSA 28 for you to sign and bring in to your appointment on 8/8/16. I attach the form for information purposes obviously with personal bits hidden.

 

Under the declaration it does say "I understand that I could claim ESA or carry on getting JSA. I want to carry on getting JSA." So I guess some people awaiting tribunal want to stay on JSA although because they put you on starting rate of ESA (which I now know!!) I can't quite understand the benefits of staying on JSA. For instance you can apparently have from how I read it up to 13 weeks of sickness in a 12 month period so by going back on the starting rate of ESA means that I have in the bank 13 weeks of sickness whilst on JSA so that would be best saved in the event that I lose the tribunal?

 

It seems that the JC are still unaware that I am going back on ESA although they may just be offering me the option to stay on JSA. Not sure what I will do if when at the appt on Monday when I say I won't sign it due to going back on starting rate of ESA and they insist I can't do that. Probably ask my work coach to call the DWP there and then.

 

Think I am right about this can someone confirm?

[Max1968]

JSA 28 Form

JSA 28.pdf