Help..ESA

Hi all,
Got a real problem here?
I represent my wife and so far have to appeals in our favour!
Problem now is that they have the claim for 365 days rule things have got a little cloudy.

Although we won second appeal after waiting for a tribunal data for over 16 months my wife was placed into the WRAG BUT she has not cash benefits what so ever due to the fact she is still claiming on a 'continuous claim' which only gives her a 'credits only claim' .
This I find confusing as she has since 2010 had been 'contributing' at what we have been told as a class 1 contribution.

After a lengthy telephone call (recorded!) in which the operator had to refer to her manager! we were told that we wouldn't have reminders from the DWP for a sick note as to her condition to be found fit for work! although they would continue with the 'credits' only claim.
The options we were told was that we could 'close' the claim down and wait 3 months and a day and start a new claim and then see if she has enough NI contributions that may enable her to start the whole process of submitting a new claim.
The other option was to appeal against the tribunal's decision and try and get to the support group BUT they could only go on what the ATOS ESA 85 medical stated and not evidence obtained thereafter.
The problem is ..what can we do? We failed the ESA3 and the original DLA with a face to face PIP interview tis Thursday at home.
If the NI contributions issue is key to a further application for the ESA do we wait until the tax end year and wait 12 weeks and a day and start tis whole process over again or is there something else we can do? Any ideas would be helpful and any questions, and I bet there may be some! much appreciated.
Thanks for looking
Chris & Ang

There may be a delay in replying to posts this evening.

See: Big Benefits Row

Hi C,

I'm afraid that I don't any particularly good news for you! How long ago was the Tribunal that awarded your wife WRAG ESA? if it is more than 1 month ago then I'm afraid that route is now closed to you.

Whether your wife can close this calim and then reclaim after 3 months + 1 day depends entirely on what she was doing beofre she claimed ESA. If she was working and paying NI contributions then there is a possibility that she might be able to do this. If she was migrated from Ib then this avenue will also be closed to you and eligibility depends on NI contributions paid whilst in employment - NI credits given while someone is on a contributory beneift does not count towards other such beneifts.

Otherwise, the only way ESA paymen t would restart is if your wife were to be allocated to the Support Group at a future reassessment (or your joint income/assets is/are low enough to qualify for income-related ESA), she should expect to undergo these periodically, even if she is not in receipt of payment.

12 Month Limit for ESA(CB)

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Welcome to the forum,

You have to ask permission to appeal to the Upper Tribunal and can only do so if there has been an error in law. You will want to ask for a statement of reasons regarding how the tribunal came to their decision. There is some information about this in the ESA appeals FAQs as well as the end of the ESA appeal guide. You will need legal advice to prepare a case and may be able to access legal aid via a local law centre or CAB.

Although im going have to double double check, we were told she had been paying class 1 contributions throughout the whole claim from 2010. i'll have to dig out the paper work relating to that and what the inland revenue have recently sent regards her contributions. as far as I can remember from the phone call to DWP they said they would be looking at tax years 2011-2012 and 2012-2013 although she was paid up to September 2012 so this may not be a good omen?
Oh well PIP interview this week so maybe all this will end?
For some reason we are not that confident, even with all the evidence from the doctors and consultants!
Thanks again for your reply and something I am now looking into again!