ESA Tribunal - Guidance required on decision

Hi Guys

Hope that you are all well.

I used the very helpful guides from this site to prepare my mother’s appeal to the Tribunal. The DWP had said my mother did not have limited capacity to work and that they would no longer pay ESA.

We appealed the case on the basis that my mother having mental and physical issues. My mother has been receiving medical certificates from her GP which state she is unfit to work for a period of 84 days and these have then been renewed for a further 84 days.

The case was heard yesterday at the Tribunal. My mother was not fit to attend and i didn’t realise that i could still attend in her absence. I got a call from the Tribunal to ask if i was coming but as i was out of town, i was unable to.

We got the decision today which states the following:
- The Appeal is allowed;

- The decision made on 23/11/2013 is set aside;

- My mother is entitled to Employment and Support Allowance with the work related activity component;

- This is because insufficient points were scored to meet the threshold for the Work Capability Assessment, but regulation 29 (2) (b) of the ESA Regulations 2008 applied;

- No Schedule 3 descriptor applied and neither does Regulation 35; and

- The bottom of the decision notice states that the Tribunal recommends that the department not assess my mother within 2 years from today’s date

The above has left me slightly confused and as such i would be grateful for some guidance.

- Would I be right in thinking my mother does not get the highest support group award but gets the work related component award?

- Will my mother have to attend work support groups etc?

- If my mother has a medical certificate which states she is unable to work and is not fit to work for 84 days (and these are likely to be renewed going forward for further 84 day periods), will she still have to attend these support group?

- What does regulation 29 (2) (b) of the ESA Regulations 2008 state?

As mentioned I am kind of confused especially with the fact my mother does not have to be assessed for at least 2 years.

Any help is gratefully received.

Regards

BoomBoom

boomboom82 wrote: Hi Guys

Hope that you are all well.

I used the very helpful guides from this site to prepare my mother’s appeal to the Tribunal. The DWP had said my mother did not have limited capacity to work and that they would no longer pay ESA.

We appealed the case on the basis that my mother having mental and physical issues. My mother has been receiving medical certificates from her GP which state she is unfit to work for a period of 84 days and these have then been renewed for a further 84 days.

The case was heard yesterday at the Tribunal. My mother was not fit to attend and i didn’t realise that i could still attend in her absence. I got a call from the Tribunal to ask if i was coming but as i was out of town, i was unable to.

We got the decision today which states the following:
- The Appeal is allowed;

- The decision made on 23/11/2013 is set aside;

- My mother is entitled to Employment and Support Allowance with the work related activity component;

- This is because insufficient points were scored to meet the threshold for the Work Capability Assessment, but regulation 29 (2) (b) of the ESA Regulations 2008 applied;

- No Schedule 3 descriptor applied and neither does Regulation 35; and

- The bottom of the decision notice states that the Tribunal recommends that the department not assess my mother within 2 years from today’s date

The above has left me slightly confused and as such i would be grateful for some guidance.

- Would I be right in thinking my mother does not get the highest support group award but gets the work related component award?

- Will my mother have to attend work support groups etc?

- If my mother has a medical certificate which states she is unable to work and is not fit to work for 84 days (and these are likely to be renewed going forward for further 84 day periods), will she still have to attend these support group?

- What does regulation 29 (2) (b) of the ESA Regulations 2008 state?

As mentioned I am kind of confused especially with the fact my mother does not have to be assessed for at least 2 years.

Any help is gratefully received.

Regards

BoomBoom

Hi bb82,

Congratulations on Mum's Tribunal success.

" The decision made on 23/11/2013 is set aside;"

This basically means that the original fit for work decision was wrong.

"My mother is entitled to Employment and Support Allowance with the work related activity component;"

This means that The Tribunal have re-looked at the adverse decision, and have decided that she should have been placed into The WRAG on the 23/11/13.

Therefore, any back pay owed will be payable from that date.

"This is because insufficient points were scored to meet the threshold for the Work Capability Assessment, but regulation 29 (2) (b) of the ESA Regulations 2008 applied;"

This means that even though they did not feel that Mum qualified for The WRAG by scoring at least the requisite minimum 15 points from The Schedule 2 Functional Descriptors, as here :

WRAG (LCW)Schedule 2 Descriptors

She did qualify for The WRAG (has Limited Capability for Work (LCW) ) under the exceptional circumstances rule as at ESA Reg 29.(2) (b) :

"(2) This paragraph applies if—

(a)the claimant is suffering from a life threatening disease in relation to which—

(i)there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and

(ii)in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or

(b)the claimant suffers 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 the claimant were found not to have limited capability for work."

From :

ESA Reg 29 for entry to The WRAG (LCW)

In other words, there would have been a "Substantial Risk" to her health or that of another if she had not been placed into The WRAG. (LCW)

"No Schedule 3 descriptor applied and neither does Regulation 35;"

This means that she does not qualify for The Support Group (SG) as she does not fulfill at least one of the functional :

SG (LCWRA)Schedule 3 Descriptors

Nor does she qualify for The SG under the exceptional circumstances rules as at :

ESA Reg 35 for entry to The SG (LCWRA)

"The bottom of the decision notice states that the Tribunal recommends that the department not assess my mother within 2 years from today’s date"

This is only a recommendation of when Mum should be reassessed.

The DWP have no legal obligation to abide by it, they may or may not.

So Mum is not in The SG, she is definitely in The WRAG.

As such, have a look at the following :

12 Month Limit for ESA(CB)

Work Focused Interviews

TheWork Programme

Changes to ESA Sanctions

If the JC Plus are to compel your Mum to take part in WFI or WRA, they must take into account her limitations as a result of her medical conditions.

They cannot force her to actively seek or take up employment.

To speed up the updating of Mum's file to reflect the Tribunal's WRAG decision, you should post a copy of The Tribunal's Decision Notice to the DWP office dealing with her ESA :

Sending Documents to the DWP or ATOS

I hope this clarifies it for you.

Please re-post to this topic if you have any further queries.

bro58

bro 58

can I just say thank you so much for the swift reply, kind words and very detailed response. it is very much appreciated and I can't thank you enough.

I will ensure I do what you suggest below and get the decision notice sent to the office dealing with the case.

in respect of the WFI and WRA, would the fact that my mum has a medical certificate provide weight in her not being able to attend these or can they force her to attend even with a medical certificate which lists depression, anxiety, urinary incontinence as her conditions?????

thank you once again
BB82

boomboom82 wrote: bro 58

can I just say thank you so much for the swift reply, kind words and very detailed response. it is very much appreciated and I can't thank you enough.

I will ensure I do what you suggest below and get the decision notice sent to the office dealing with the case.

in respect of the WFI and WRA, would the fact that my mum has a medical certificate provide weight in her not being able to attend these or can they force her to attend even with a medical certificate which lists depression, anxiety, urinary incontinence as her conditions?????

thank you once again
BB82

Hi bb82,

As Mum has been placed into The WRAG, she has been deemed as having Limited Capability for Work (LCW).

In other words, she is "unfit" for work, however she is not unfit for Work Related Activity (WRA).

If the Tribunal had thought that she was unfit for WRA, she would have been deemed to have Limited Capability for Work Related Activity, (LCWRA) and as such would have been placed into The SG where one does not have to take part in WFI or WRA.

So really, as a fit note is already stating that Mum has LCW, and is unfit for work, it does not have any real effect on being in The WRAG.

You should continue to provide fit notes until told to the contrary, when the DWP have updated Mum's file.

What may help is a letter from Mum's G.P. stipulating the limitations that Mum suffers, and any limitations that may result in The JCP or a Works Programme Provider making reasonable adjustments.

If/when Mum receives a letter to attend WFI's she can request that the WFI's are deferred, carried out over the phone, or in her home.

However, she cannot insist on this, and the decision is entirely at The JCP Adviser's discretion.

If you are unhappy with The Tribunal decision, and feel that Mum should have been placed into The SG, you could consider an appeal to The Upper Tier, but this can only be done if there was an error in law :

What is an Error of Law?

Your first step would be to request the written statement of reasons from The TS within one month of the date of the Decision Notice :

Tribunals – Requesting a Statement of Reasons

See also :

Appealing to The Upper Tier, DR UK Factsheet

Where to get advice

bro58

Hi bb82,

I should have given you this FAQ as well :

Qualifying for the Support Group

Just in case you haven't already read it.

bro58