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

[antone]

The JC probably don't yet know you're going back on ESA. I would take the form with you and discuss it with them - I strongly advise that you continue (for now) to meet all the requirements of JSA until you have it confirmed that your ESA claim is up and running.

 

I don't think this is a matter of great concern, though - probably just a case of the JC not getting the message about your change of benefits. Have they paid you any JSA? I've sort of lost track of your timeline

[Max1968]

The JC probably don't yet know you're going back on ESA. I would take the form with you and discuss it with them - I strongly advise that you continue (for now) to meet all the requirements of JSA until you have it confirmed that your ESA claim is up and running.

 

I don't think this is a matter of great concern, though - probably just a case of the JC not getting the message about your change of benefits. Have they paid you any JSA? I've sort of lost track of your timeline

 

 

 

Thanks Antone. Yep have been paid JSA. Will sign on again Monday and JSA is usually paid in by the Thursday. I'll obviously continue to meet the requirements for JSA in the meantime.

[Max1968]

Hi all, some more advice needed if I may.

 

Went to sign on today at the JC and took the JSA28 Form (attached in post 177) with me. Told the work coach that I was not signing the form because I am being put back on starting rate ESA whilst awaiting tribunal. Then three of them get involved all once again telling me that you can't do that and once more stating that no claimant has ever gone back on to ESA whilst awaiting tribunal. As politely as possible I explained that a DWP employee gave me this information and that the info was also on the gov.uk website, albeit well hidden, but it cut no ice with them at all and they carried on claiming that no one had ever gone on ESA awaiting tribunal and this employee must be wrong. One of them mumbled something along the lines of "You can go back on ESA starting rate if you have received a letter from the Tribunal service saying you can go back on ESA" I explained that I had received a letter from the Tribunal service outlining that they have received my appeal and it is all in motion, but I stressed the tribunal service can not put me back on ESA as it is nothing to do with them, it's the DWP that do that. They faxed my letter from the Tribunal service last week anyway to the DWP and I have had two identical texts through from the DWP confirming they have heard from the Tribunal service anyway so the DWP themselves obviously know.

 

The work coach then said I would have to sign form JSA28 anyway because my period of sickness of whilst on JSA has now run out anyway. I said I hadn't been on a period of sickness whilst on JSA and she said that I had because of my Fit Notes. I explained that the Fit Notes were for the benefit of the DWP who require Fit Notes again once they put you back on ESA awaiting Tribunal. She said "well if you are not fit for work then why are you claiming JSA if you are not looking for work?" I then tried to explain the quandary we all know about that everyone on the planet knows that you are not fit for work bar the Health Assessor and the DWP. I said that I had been looking for work but I was unemployable and that whilst appealing Mandatory Reconsideration all I could claim for was JSA. She asked what was wrong with me and I said "vertigo, you are wobbling in front of me as I speak to you", she then replied that I needed flexible employment hours. I mean you couldn't make this up.

 

She kept banging on about my Fit Notes and saying I needed to sign JSA28 because I wouldn't get this weeks JSA because I hadn't been looking for work. I again said I had been meeting all the requirements for JSA but she kept saying "how can you be if you aren't fit for work?" She then started banging on about my sickness entitlement has run out and I again stressed that I was not claiming sickness entitlement at the present time because IF I lose my Tribunal I may well need those weeks once claiming JSA again. At least one of them piped up some common sense when she said that if I lose my tribunal and claim JSA that would be considered a new claim and therefore sickness entitlement would reset to the beginning.

 

Once again she kept asking me to sign JSA28. I said I wouldn't sign it because the dates she had put down were "21/7/16 date I became sick" (starting date of newest fit note) and "8/8/16 date I will be well again". - I said I could not sign that because I am not well on 8/8/16 as that is today. She then wrote on the form "SICK NOTE PRODUCED - 21/7/16 TO 21/9/16 CUSTOMER CLAIMING ESA AFTER THIS SIGNING AS WAITING FOR TRIBUNAL."

 

I clearly wasn't going to get out of there without signing this form and I was now concerned that if I didn't sign the for then I would miss out on this weeks JSA. So I signed it but wrote on the form. "I AM NOT SIGNING THIS FORM DECLARING I AM/WILL BE FIT FOR WORK BY 8/8/16. THIS PURELY COVERS ME FOR JSA CLAIM. I HAVE BEEN NOTIFIED BY DWP THAT I WILL BE MOVED ONTO ESA STARTING RATE AFTER 8/8/16 CLAIM AS ADVISED BY ********* AT ******** (That is DWP employee name and office name).

 

No idea whether I did or wrote the right thing but was at the end of my tether by then and had to think off the cuff. The work coach then said she would not book me in again but would contact me with a date to sign on if the DWP do not put me back on ESA, She is obviously convinced that I have got it wrong,.

 

So did I do the right thing by that form? I am now very worried that by signing that form the DWP will just say I am happy to stay on JSA for the waiting time until appeal although I am going to ring the DWP as well tomorrow and try and get hold of the lady I spoke to last week in an effort to clear all this up.

 

Also is there someone I can contact about all this because surely the Job Centre cannot be allowed to continuously give out incorrect information? They insist that no claimant has ever been put back on ESA whilst awaiting tribunal at that JC and it's not surprising if the wrong information is being given. It's not at all fair so surely someone high up needs to be correcting all the advisors at the JC?

 

Thank you again.

[Max1968]

Well called the DWP this morning and someone just called back confirming they will reinstate my ESA and close my JSA claim. Signing of the JSA28 form was explained and it "won't" affect moving back to ESA. The first lady I spoke to was very surprised that my JC don't seem to accept that you can go back on ESA awaiting Tribunal and she said she would email my JC confirming these regulations although whether she will or not is anyone's guess,. Took the name and office of the lady who confirmed the ESA switch so I now have two dates, times, offices and names recorded about me moving back to ESA so hopefully that will be enough in the case of something going wrong.

[Bazooka Boo]

Good for you, I don't doubt for one moment that your local JCP knows these regs inside out, what you had was a vile vindictive bully who's only wish is to make your life as hard as possible.

 

So lodge a formal complaint about that individual, and exhaust it, copy in your local MP too.

[Max1968]

Good for you, I don't doubt for one moment that your local JCP knows these regs inside out, what you had was a vile vindictive bully who's only wish is to make your life as hard as possible.

 

So lodge a formal complaint about that individual, and exhaust it, copy in your local MP too.

 

Thing is there were four of them all denying knowledge of it. Then as I said one of them mumbled something along the lines of you can do it if a Tribunal letter says you can which reading between the lines shows that they knew exactly what I was saying but still denied knowing about it.

 

Where this could be avoided is for regulations to be brought in to state anything to do with an appeal, tribunal, mandatory reconsideration etc, anything that involves sending documents to the DWP is done purely via the DWP and not going to ask the Job Centre to scan and fax over documents. Early on in all this the DWP asked me to forward a fit note by getting the JC to scan and fax it over. However the JC said they didn't do that and another DWP rep then said I should just send it direct. It's confusing the and the JC should purely and simply deal with JSA claimants and then regarding ESA the claimant should only be dealing with the DWP and then the DWP should deal with the JC.

 

Also what is needed is very clear and concise regulations for all benefits. A Q and A which is easily found and displays easy to find and easy to understand information. The fact that you can go back on ESA whilst awaiting tribunal is hidden away in a small document so it's no wonder people can't find this information.

[antone]

It is not at all unlikely that the JC advisers don't know the ESA regs "inside and out" because, quite frankly, knowing that information is not their job. Advisers in Jobcentres deal with ESA rather infrequently. What is inexcusable, however, is that they are giving advice on a topic rather than simply acknowledging that they don't know something and then looking up the guidance to find out. That's what a complaint should focus on.

[Bazooka Boo]

OK I'll rephrase that, the JCP staff knowingly gave you inaccurate & misleading information in an attempt to bully and control you.

 

I agree, that is what the complaint should focus on.

[antone]

OK I'll rephrase that, the JCP staff knowingly gave you inaccurate & misleading information in an attempt to bully and control you.

 

I agree, that is what the complaint should focus on.

 

The most frustrating thing about it for me is that the information is easily available to staff who bother to look. The DWP's intranet contains detailed guidance and should be available to any staff member with a computer, which is pretty much all of them. If you don't know a rule, look it up, dammit. So while I don't think that all cases of staff giving bad information are malicious, the fact that these staff repeated the duff advice even in the face of a claimant who's been told something else by the people who actually know (the processors) is enough to give me pause.

 

My thought would be that Max should first ensure that his payments get sorted and he's put back on ESA as the rules allow, and then a complaint is definitely in order.

[Bazooka Boo]

Couldn't agree more Ant, I was always taught that if you don't know the answer to a question, simply say so and that you'll find out the answer and get back to them.

 

You lose far much more face and credibility simply trying to bluff your way through it.

[Max1968]

The thing is the claimant (me) now seems to know more about the regulations than those at the JC do, as I said before maybe I should apply for a job there!!!

 

Antone, to be fair to the JC (can't believe I am being fair to them but there you go) I think it's a case of they don't know where to look. As I say finding out that you can go back on ESA whilst awaiting Tribunal is a very difficult thing to find out. Amongst hundreds of documents on the Gov.uk website in a search about ESA the only one I found clarification was on this link https://www.gov.uk/government/publications/appeals-of-employment-and-support-allowance-10462013 under the document Appeals of Employment and Support Allowance and this in itself looks like a Q and A from a claimant wanting to have information clarified themselves. It's also dated 2013 so not exactly up to date and has that 2013 date that so many of the JC advisors keep mentioning that rules changed after that which of course are the rules on Mandatory Reconsideration which is what they probably think they are talking about.

 

So in your knowledge where would the JC staff look if they wanted to check this out? I actually tried to find it on one of their public computers but ran out of time before they closed which was unfortunate because nothing would have given me greater pleasure than to point it out to them. Can they just access an ESA Rules and Regulations document which will give them the correct info or do they just have to search a minefield like we do?

 

Also complaint wise who would I complain to?

[Nystagmite]

I think it would be the manager of the JC?

 

Whilst no-one is suggesting that advisers should know everything about all the regulations, (there are probably thousands which are complicated which JC advisers may never need to use) your situation doesn't seem to be that rare. It does seem strange, imo, they didn't know this one.

[Max1968]

Well this lot at the Job Centre don't half like getting the last word in.

 

Today I have received a letter through about an interview that has been arranged for me in just over a weeks time. The interview is a Jobseekers Allowance Adviser Interview. Basically it states that "Your Personal Advisor will give you support, based on your needs and skills, to help you find work and stay in suitable work" "The Interview is to talk about the steps you are taking to look for and prepare for work and the help you may need to improve your chances of success. As part of this your advisor will :" and then it just states the usual threatening statements about sanctions and what not and how you can lose your JSA if you don't do this, that and the other.

 

To be fair a hand written note is on the bottom of the letter stating that :"If you claim ESA this appointment will be automatically cancelled but if your claim does not go ahead this will be your next appointment for job seekers allowance."

 

Not really surprising that we all choose to go back on the starting rate of ESA with threatening letters such as these. I suspect its a general basic letter because I have obviously not made any headway in finding work due to illness since mid May so after three months I suspect that they jump on your back three months in regardless of whether you are ill or not. Quite lucky I lasted this long TBH because obviously there is little you can do when you are not fit for work. I was fortunate that my work coach didn't actually ask me to allow her to access my Universal Job Site account so my evidence to keep JSA would have been quite low.

 

Bit worried about this now as I am not sure if I will receive any written confirmation from the DWP to state that I am back on ESA?

[Max1968]

Well just received a text today from the DWP saying that they have sent my case to the Tribunal Service so I expect I'll get a massive pack of papers in the post soon. It's probably like asking how long a piece of string is but does anyone have any idea on what the waiting times are for ESA Tribunals in the South East>? Am I looking at weeks or months?

[Bazooka Boo]

ESA Tribunals in the South East>? Am I looking at weeks or months?

 

Well, mine was months, SE also, and when the date got nearer, in fact three days away, only then did the tribunal look at the file, and decide to adjourn the tribunal so they could get more information.

 

All in all, I spent three years fighting my case.

[Max1968]

Well, mine was months, SE also, and when the date got nearer, in fact three days away, only then did the tribunal look at the file, and decide to adjourn the tribunal so they could get more information.

 

All in all, I spent three years fighting my case.

 

Many thanks for that. Well received the massive package from the DWP today. Pretty much the same stuff that I have received before although it was interesting to see the HCP's report first hand and it looked truthful to be fair.

 

Was a little surprised however to see under "facts of the case" that I had apparently originally been given ESA due to diabetes and vertigo. I never claimed due to my diabetes, only vertigo and insomnia. Also another paragraph reads "In his appeal he states that he was referred to the Shaw Trust and was told within 10 minutes of the start of the interview the Shaw Trust informed him that they could not help him as no company would employ him on health and safety grounds, although they might be able to help him if his condition improved, he has several letters from his GP which states his condition is under control, he was told by the Shaw Trust that nobody will employ him but the decision stated his medical conditions do not limit his functional ability."

 

Now I have two issues with that paragraph. One is that yes I have several letters from my GP, which the DWP also have, but they actually state that my condition is not under control. It could be a typo but why would the DWP state this when they have also included the letters from my GP that state the opposite? Also what decision are they talking about when they say "but the decision stated his medical conditions do not limit his functional ability." I assume they are talking about their own decision>?

 

Bar that it is all fairly explanatory and seen before bar a new comment from them where they are obviously determined to get me. They state that "his GP states his vertigo is unpredictable. He also stated he believes he is unemployable because of his health issues. He has not explained why he is able to drive despite his unpredictable vertigo". I already told them at the WCA that no-one has told me I can't drive and if I am suffering with the vertigo I don't drive. My GP states that it is unpredictable day to day which is exactly why my ESA50 Form is littered with "it varies" answers and hence why The Shaw Trust say I am unemployable because no employer will touch someone who can't guarantee what they are going to feel like day to day.

 

Also can someone explain this paragraph.

 

They say "I respectfully request that the tribunal confirms the decision that Mr.**** is not entitled to ESA as he does not have limited capability for work. Should the tribunal decide that Mr *** does have limited capability for work : I respectfully request that they decide whether or not Mr *** has limited capability for work related activity. If they determine that there is insufficient evidence, the tribunal is requested to refer the case to the decision maker for determination. ESA Regulations 2008, regulation 34 and schedule 3" There is then a long drawn out paragraph about work related activity in my area and then at the end of the package they enclose a leaflet about Avanta a work programme provider.

 

 

Have to be honest I don't think I am going to win this. I really can't see how someone who basically meets the some of the descriptors half of the time but not the other half can win and yet what can I do about employers not employing me. Really between a rock and a hard place.

[antone]

The DWP, in their submission to the Tribunal, have to make their case. If they don't, the first question the Tribunal will ask them (if they actually show up, which is not all that likely) is "why did you deny ESA when you appear to have no reason to have done so?" If they don't show up and they haven't made at least a token effort to justify their decision, the Tribunal would rule summarily in your favour with a complaining note to the DWP that this should never even had ended up on the Tribunal's desk.

 

So for that final paragraph that you mention:

 

"I respectfully request that the tribunal confirms the decision that Mr.**** is not entitled to ESA as he does not have limited capability for work."

 

Means "We ask that you confirm our decision to deny ESA"

 

"Should the tribunal decide that Mr *** does have limited capability for work : I respectfully request that they decide whether or not Mr *** has limited capability for work related activity."

 

Means "if you decide that the claimant is entitled to ESA, we ask that you don't put him in the Support Group, where he'd get extra money and our ability to harass him would be severely curtailed"

 

"If they determine that there is insufficient evidence, the tribunal is requested to refer the case to the decision maker for determination. ESA Regulations 2008, regulation 34 and schedule 3"

 

Means "if you haven't got enough evidence to decide either way, we ask that you uphold our original decision as per the law"

 

The other questions you ask are related to matters of fact which I can't really comment on too much, except to say that matters of fact are precisely what the Tribunal must consider, and so the DWP will, in the course of explaining their decision, make reference to the facts as they understand them. The thing is, they very often don't understand them, especially if their decision is based on a dodgy Atos/Capital medical assessment. Your focus when appealing should be on these points, explaining why the DWP is not correct.

 

As to the obvious mistakes regarding whether or not your condition is under control, remember that the DWP's appeal submission was probably put together by someone who's spent, oh, 10 minutes in total looking at your claim. They have to say something, but, you know, targets and deadlines - knock this one out and on to the next case. That's very often the way this is approached. And the Tribunals know this, which is why you should never feel that you have no chance because they are, as a rule, a lot more sympathetic to claimants than the DWP.

[reallymadwoman]

What Antone said, plus even if you don't score the magic 15 points, there's always the 'risk of serious harm' and 'uncontrolled condition' regulations, which I would think are specifically designed for cases like yours.

[Max1968]

Thanks again.

 

Quite interesting reading through the medical report actually. It's quite funny really when you read inconsistencies :

 

"Vertigo, Onset several months go" "Insomnia, Onset several years ago, started not long after the vertigo" Huh, the insomnia started a few months ago not a few years ago, then it contradicts itself by saying it started not long after the vertigo.

 

"yesterday evening the blood sugar levels were raised" I don't check my blood sugar levels personally for Type 2 so no idea where he got this from.

 

"Tests showed that vertical balance is 60-70% and horizontal balance is gone" This was not on the DWP Report and is on the Health Practitioners report. On the DWP Report it said that "He sat during assessment which revealed positive balance test" So the DWP take sitting on a chair as a balance test and ignore even their own HP's report which states my consultants balance findings.

 

"Romberg Test for balance positive" The HCP didn't perform a Romberg Test. He noted that he wouldn't touch my neck in fear of bringing on a vertigo attack so why would he even attempt a Romberg Test?!

 

"Blood pressure 165/105" Mine isn't usually this high which shows the anxiety this WCA creates.

 

"Balance observed to be slightly unsteady and I found this consistent" Huh again, apparently my balance was fine according to the Romberg test he didn't do!!!!

 

"Had no difficulty using a step to get onto the couch" I think a 6 month old baby would have done it quicker!

 

"Was able to get out his mobile phone" I didn't take out my mobile at the WCA.

 

"Appeared to have no difficulty removing and putting on pullover" Wasn't wearing one!!

 

"Muscle tone in left leg was normal" "Power in left leg was normal" Muscle tone in right leg was normal" Hip flexion is 130 Normal" "Hip Rotation is 45 normal" etc etc etc. Now I am not denying that these would not be normal but bar one or two exercises the HCP didn't look at things like hip rotation, arm or leg power. Also how can you visualise arm or leg tone in a person wearing a jacket and jeans without touching that person which he didn't?! So basically boxes have been ticked without doing half the tasks.

 

So many inconsistencies and untruths which makes my blood boil. If it were a court case this would be thrown out of court. It's akin to planted evidence or doctoring of evidence reports.

 

Which takes me to the most interesting one. I am not sure if this is just a guide to decision makers or it is relevant to the HCP's report because it is the page after the HCP Report. It reads :

 

-----------------------------------------------------------------------------------------------------------------------------

 

In all cases, including scrutiny LCW and LCWRA, decision makers must complete the ESA56 fully, scoring all descriptors.

 

Action for Decision Maker (all levels of decision making) On receipt of the MSRS output report and any supporting documents :

 

[] A determination on the WCA is required on the basis of the score and exceptional circumstances comments.

 

[X] In the opinion of the approved healthcare professional the customer can be treated as having limited capability for work.

 

[] In the opinion of the approved healthcare professional the customer can be treated as having limited capability for work related activity.

 

[] Further information.

 

---------------------------------------------------------------------------------------------------------------------

 

Over the page a list of all descriptors are listed with the scores of 0 and at the end there is a name but no signature ticking the box "can not be treated as having limited capability for work"

 

So maybe that first page is just a guideline although it looks like the Healthcare Professional has deemed me with limited capability for work. Very confusing.

 

Interestingly enough I googled the HCP's name and despite being down as a Dr - Registered Medical Practitioner and Approved Disability analyst his name does not come up anywhere in a google search bar foreign language sites and that may or may not be him. Very unusual for such an apparently highly qualified medical professional to be invisible in a web search,.

[honeybee13]

These inconsistencies are just the sort of thing you need to highlight in your appeal. You can use the template in our stikky.

 

HB

[Max1968]

These inconsistencies are just the sort of thing you need to highlight in your appeal. You can use the template in our stikky.

 

HB

 

 

 

Thanks Honeybee. Is it the Mandatory Reconsideration, Appealing or going to a Tribunal? Some useful information thread where the template is?

[honeybee13]

I believd so, yes.

 

HB

[Max1968]

Thank you.

 

By the way I have been thinking about something although I am pretty sure that I wouldn't succeed in proving it however it's worth asking the question.

 

In my particular case it's hard to gain points from the descriptors due to an up and down condition, that's been my difficulty. For instance on a day without a vertigo attack I can walk 200 yards I don't have an issue with that. However on a day where I do have a vertigo attack I cannot walk 200 yards and that is the problem with employment because I don't know what sort of day I am going to have.

 

I can't put a figure on it but let's just say for the sake of it being mathematically easy that 50% of the time I am okish and 50% of the time I am in the middle of a vertigo attack so 50% can walk 200 yards and 50% can't walk 200 yards.

 

Is there any point then in arguing that I should in fact be awarded "half" the points in the descriptors? Or 40% or 60% or 30%, you get the picture. So if say not being able to walk 200 yards gives you 6 points then I should score 3.

 

Just something I was thinking about and I suspect a lot of people may be in the same boat.

Edited August 22, 2016 by honeybee13
Paras.

[Nystagmite]

It doesn't work like that.

 

You do need to argue there's a risk and that your condition is unpredictable.

[Max1968]

Thought some may be interested in reading this. It makes my blood boil although fair play to the couple with their detective work.

 

 

http://www.bbc.co.uk/news/uk-england-derbyshire-37224153