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- RW1
- Topic Author
10 years 9 months ago #123758 by RW1
ESA was created by RW1
Hi B & W,
My wife had been on IB since 1991 due to a serious back injury, she was supposed to be transferred onto ESA in August 2013. But a few months before this, she was sent an ESA 50 form. She then had to go for an ATOS medical. Even though we provided medical reports from some of the top specialist's in Harley Street, the ATOS nurse ignored them. She could not examine my wifes lower limb movements, due to the pain that it causes her lower back.
A few weeks later, we received a letter from the DWP, saying that my wife did not qualify to receive ESA! The nurse's report was a load of old tosh, and we appealed against her/DWP's decision on the 22 Aug 2013. We won our appeal at the tribunal on 30 May 2014, but during the judge telling us that they had upheld our appeal and was babbling on about now getting ESA and the money being backdated. We took the piece paperwork away without reading it properly.
On arriving home from the tribunal, I noticed that they had placed my wife into the ESA WRAG/CB and not the SG as we had thought! The judge had only answered the first 2 of the 17 questions that I had raised towards the points process on the ESA50 form that the ATOS nurse had managed to award only "6 points" in total. My wife received a 15 point and a 9 point score for the first 2 categories on the ESA50 form, from the tribunal judge.
I got in touch with the DWP in June, and asked them for a copy of the tribunals "statement of reasons." So that I could put a decent appeal in about my wife being placed into the WRAG and not the SG as I feel that she should have been. We are still waiting for these documents to be sent to us over 6 weeks later.
My wife has since received a letter from the DWP, saying that her ESA payments will be stopping on the 22 August 2014. (due to the 365 day rule) But last week my wife received a letter from our local JC, asking her to attend a work focused interview on the 8 Aug.
If her money is due to stop in 2 weeks time, and with us still waiting for the statement of reasons paperwork to then lodge the appeal. Does she have to attend this WFI meeting? It seems a bit silly arranging a meeting 2 weeks before they stop making payments!
Any advice will be warmly received.
Thanks,
RW1
My wife had been on IB since 1991 due to a serious back injury, she was supposed to be transferred onto ESA in August 2013. But a few months before this, she was sent an ESA 50 form. She then had to go for an ATOS medical. Even though we provided medical reports from some of the top specialist's in Harley Street, the ATOS nurse ignored them. She could not examine my wifes lower limb movements, due to the pain that it causes her lower back.
A few weeks later, we received a letter from the DWP, saying that my wife did not qualify to receive ESA! The nurse's report was a load of old tosh, and we appealed against her/DWP's decision on the 22 Aug 2013. We won our appeal at the tribunal on 30 May 2014, but during the judge telling us that they had upheld our appeal and was babbling on about now getting ESA and the money being backdated. We took the piece paperwork away without reading it properly.
On arriving home from the tribunal, I noticed that they had placed my wife into the ESA WRAG/CB and not the SG as we had thought! The judge had only answered the first 2 of the 17 questions that I had raised towards the points process on the ESA50 form that the ATOS nurse had managed to award only "6 points" in total. My wife received a 15 point and a 9 point score for the first 2 categories on the ESA50 form, from the tribunal judge.
I got in touch with the DWP in June, and asked them for a copy of the tribunals "statement of reasons." So that I could put a decent appeal in about my wife being placed into the WRAG and not the SG as I feel that she should have been. We are still waiting for these documents to be sent to us over 6 weeks later.
My wife has since received a letter from the DWP, saying that her ESA payments will be stopping on the 22 August 2014. (due to the 365 day rule) But last week my wife received a letter from our local JC, asking her to attend a work focused interview on the 8 Aug.
If her money is due to stop in 2 weeks time, and with us still waiting for the statement of reasons paperwork to then lodge the appeal. Does she have to attend this WFI meeting? It seems a bit silly arranging a meeting 2 weeks before they stop making payments!
Any advice will be warmly received.
Thanks,
RW1
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- Gordon
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10 years 9 months ago - 10 years 9 months ago #123759 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic ESA
RW
First can I pick up on something that you have said in your post, you say that you have contacted the DWP for the Statement of Reasons, I hope this is not the case as the request needs to be sent to the Tribunal Service and I would be surprised if the DWP would have forwarded it.
If this is correct then you would now be outside the one month time limit for making the request to the Tribunal Service, although it is worth trying and explaining what has happened in the off chance that the Judge is still amenable to producing a SoR.
If you did send it to the TS then they should have written to confirming receipt of the request, it can take the Judge up to three months and sometimes longer to produce the Sor.
You need to be aware that you cannot appeal the Tribunals Decision because you disagree with it, only because there was an Error of Law in the proceedings.
What is an Error of Law?
If your wife's ESA(CB) payments are stopping due to the 365 day limit then so should any requirement for her to participate in Work Related Activity (see below), I would contact the JC+ advisor to make sure they are aware that her payments are stopping hopefully they will see sense and defer the appointment, but if they do not then she will need to attend or risk having her remaining payments sanctioned.
This may seem punitive and it undoubtedly would be, but as it stands at the moment sanctions remain in placed until the outstanding activity is carried out or the sanction is removed and therefore could carry forward to any future claim that she might make.
Have you checked whether she will qualify for Income Related ESA, this will dependant on your household income, your savings and assets, and any hours that you work. See
Asset rule for ESA(IR)
24 hour work rule for ESA(IR)
If she is then her payments will continue although she will also still be required to attend WFIS and to undertake Work Related Activity.
In addition to challenging the Tribunal Decision your wife can ask to be re-assessed if she can show that there has been a documented deterioration in her condition since the date of the original Decision that found her Fit for Work.
This will require her to complete a new ESA50 and she will likely have to attend a new assessment, but if she is placed in the Support Group then her ESA(CB) payments will be restarted, this can be done in parallel to any of the above, but is likely to take some time due to the current delays in the system.
If you think that this might work for her, then you need to write to the DWP office dealing with her claim and ask for her to be re-assessed because her conditions are worse.
Gordon
First can I pick up on something that you have said in your post, you say that you have contacted the DWP for the Statement of Reasons, I hope this is not the case as the request needs to be sent to the Tribunal Service and I would be surprised if the DWP would have forwarded it.
If this is correct then you would now be outside the one month time limit for making the request to the Tribunal Service, although it is worth trying and explaining what has happened in the off chance that the Judge is still amenable to producing a SoR.
If you did send it to the TS then they should have written to confirming receipt of the request, it can take the Judge up to three months and sometimes longer to produce the Sor.
You need to be aware that you cannot appeal the Tribunals Decision because you disagree with it, only because there was an Error of Law in the proceedings.
What is an Error of Law?
If your wife's ESA(CB) payments are stopping due to the 365 day limit then so should any requirement for her to participate in Work Related Activity (see below), I would contact the JC+ advisor to make sure they are aware that her payments are stopping hopefully they will see sense and defer the appointment, but if they do not then she will need to attend or risk having her remaining payments sanctioned.
This may seem punitive and it undoubtedly would be, but as it stands at the moment sanctions remain in placed until the outstanding activity is carried out or the sanction is removed and therefore could carry forward to any future claim that she might make.
Have you checked whether she will qualify for Income Related ESA, this will dependant on your household income, your savings and assets, and any hours that you work. See
Asset rule for ESA(IR)
24 hour work rule for ESA(IR)
If she is then her payments will continue although she will also still be required to attend WFIS and to undertake Work Related Activity.
In addition to challenging the Tribunal Decision your wife can ask to be re-assessed if she can show that there has been a documented deterioration in her condition since the date of the original Decision that found her Fit for Work.
This will require her to complete a new ESA50 and she will likely have to attend a new assessment, but if she is placed in the Support Group then her ESA(CB) payments will be restarted, this can be done in parallel to any of the above, but is likely to take some time due to the current delays in the system.
If you think that this might work for her, then you need to write to the DWP office dealing with her claim and ask for her to be re-assessed because her conditions are worse.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Last edit: 10 years 9 months ago by Gordon.
The following user(s) said Thank You: RW1
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- RW1
- Topic Author
10 years 8 months ago - 10 years 8 months ago #124845 by RW1
Replied by RW1 on topic ESA
Hi,
I eventually received the statement of reasons from the tribunal judge from the 30-5-2014. When they allowed my wife's appeal against the Atos decision from July 2013, they only covered the first 2 sections from the ESA form. They awarded my wife 24 points for this, and agreed that she could not stand or sit for more then 5 mins without having to move! But they did not bother looking into all of the other sections that we had appealed about from the Atos medical. Including my wife's mental health, and a report from a psychiatrist!
They placed my wife into the work related group of ESA, and backdated her claim to July 2013. After seeing their statement of reasons, we appealed that my wife should have been placed into the support group of ESA and asked for the matter to be heard by the upper tribunal!
I have just received a letter from HM Courts & Tribunals Service, stating that the "District Judge" has rejected our appeal to go to the upper tribunal. But has now ordered that a "new tribunal" should hear the appeal, and that the original tribunals decision is being "cancelled."
Is this correct and can they do this?
Regards,
RW1
I eventually received the statement of reasons from the tribunal judge from the 30-5-2014. When they allowed my wife's appeal against the Atos decision from July 2013, they only covered the first 2 sections from the ESA form. They awarded my wife 24 points for this, and agreed that she could not stand or sit for more then 5 mins without having to move! But they did not bother looking into all of the other sections that we had appealed about from the Atos medical. Including my wife's mental health, and a report from a psychiatrist!
They placed my wife into the work related group of ESA, and backdated her claim to July 2013. After seeing their statement of reasons, we appealed that my wife should have been placed into the support group of ESA and asked for the matter to be heard by the upper tribunal!
I have just received a letter from HM Courts & Tribunals Service, stating that the "District Judge" has rejected our appeal to go to the upper tribunal. But has now ordered that a "new tribunal" should hear the appeal, and that the original tribunals decision is being "cancelled."
Is this correct and can they do this?
Regards,
RW1
Last edit: 10 years 8 months ago by bro58.
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- bro58
10 years 8 months ago - 10 years 8 months ago #124847 by bro58
Hi RW1,
Even though The District Judge has denied your request to appeal to The UTT, they have "Set aside" the Tribunal Decision that you have challenged.
So your appeal will be heard afresh by a new First Tier Tribunal. (FTT)
This is most probably a similar outcome to one that you would have received if your appeal had been heard by The Upper Tier Tribunal (UTT) on an error of law.
UTT's seldom make fresh decisions. The norm would be to "Set aside" (Cancel) The FTT decision, and send it back to The FTT for a fresh hearing, with or without directions.
So now your appeal will be reheard, you can provide fresh evidence, and you should review your original submission to see whether you can make it clearer how and why your wife fulfills at least one of :
The SG (LCWRA)Schedule 3 Descriptors
Or if none of those, under : ESA Reg 35 for entry to The SG (LCWRA)
This is what the Tribunal will be looking for, to see whether she qualifies for The SG.
You might also want to review our ESA MR/Appeals Guide and our ESA Claims Guide :
ESA Claims Guides
bro58
Replied by bro58 on topic ESA
RW1 wrote: Hi,
I eventually received the statement of reasons from the tribunal judge from the 30-5-2014. When they allowed my wife's appeal against the Atos decision from July 2013, they only covered the first 2 sections from the ESA form. They awarded my wife 24 points for this, and agreed that she could not stand or sit for more then 5 mins without having to move! But they did not bother looking into all of the other sections that we had appealed about from the Atos medical. Including my wife's mental health, and a report from a psychiatrist!
They placed my wife into the work related group of ESA, and backdated her claim to July 2013. After seeing their statement of reasons, we appealed that my wife should have been placed into the support group of ESA and asked for the matter to be heard by the upper tribunal!
I have just received a letter from HM Courts & Tribunals Service, stating that the "District Judge" has rejected our appeal to go to the upper tribunal. But has now ordered that a "new tribunal" should hear the appeal, and that the original tribunals decision is being "cancelled."
Is this correct and can they do this?
Regards,
RW1
Hi RW1,
Even though The District Judge has denied your request to appeal to The UTT, they have "Set aside" the Tribunal Decision that you have challenged.
So your appeal will be heard afresh by a new First Tier Tribunal. (FTT)
This is most probably a similar outcome to one that you would have received if your appeal had been heard by The Upper Tier Tribunal (UTT) on an error of law.
UTT's seldom make fresh decisions. The norm would be to "Set aside" (Cancel) The FTT decision, and send it back to The FTT for a fresh hearing, with or without directions.
So now your appeal will be reheard, you can provide fresh evidence, and you should review your original submission to see whether you can make it clearer how and why your wife fulfills at least one of :
The SG (LCWRA)Schedule 3 Descriptors
Or if none of those, under : ESA Reg 35 for entry to The SG (LCWRA)
This is what the Tribunal will be looking for, to see whether she qualifies for The SG.
You might also want to review our ESA MR/Appeals Guide and our ESA Claims Guide :
ESA Claims Guides
bro58
Last edit: 10 years 8 months ago by bro58.
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- RW1
- Topic Author
10 years 7 months ago - 10 years 7 months ago #124964 by RW1
Replied by RW1 on topic ESA
Hi,
Thanks for your reply, I am a bit confused now!
After the tribunal on the 30/5/2014, had over-ruled the Atos nurse's decision. The tribunal agreed that my wife met the "said descriptors" in section 1 and 2, and therefore be "treated as having limited capability for work."
They went on to say that having made the above findings, my wife did not meet the criteria for limited capability for work related activity under section 3.
But due to the fact that on the 2/8/2013 the Atos nurse said that there was nothing wrong with my wife, her money was cut down to £71pw. Whilst we appealed and waited for the tribunal date. On the 30/5/2014 when the tribunal upheld our appeal, then my wife's money was back dated to 2/8/2013.
But even though we have appealed against my wife being placed into the WRAG of ESA. Now the DWP have completely stopped my wife's money, due to the fact that she was receiving contribution based ESA (wrag).
Whilst awaiting the "new tribunal date," which could be over 6 month's away, surely my wife is entitled to something whilst appealing against their decision?
Also please can you tell me what type of letter that my wife needs her Doctor to write to the DWP, informing them that he disagrees with her being placed into the WRAG of ESA? Where it mentions that they could be placing my wife's "health and welfare" at risk and also make her condition even worse?
Thank you for all of your help and advice.
RW1
Thanks for your reply, I am a bit confused now!
After the tribunal on the 30/5/2014, had over-ruled the Atos nurse's decision. The tribunal agreed that my wife met the "said descriptors" in section 1 and 2, and therefore be "treated as having limited capability for work."
They went on to say that having made the above findings, my wife did not meet the criteria for limited capability for work related activity under section 3.
But due to the fact that on the 2/8/2013 the Atos nurse said that there was nothing wrong with my wife, her money was cut down to £71pw. Whilst we appealed and waited for the tribunal date. On the 30/5/2014 when the tribunal upheld our appeal, then my wife's money was back dated to 2/8/2013.
But even though we have appealed against my wife being placed into the WRAG of ESA. Now the DWP have completely stopped my wife's money, due to the fact that she was receiving contribution based ESA (wrag).
Whilst awaiting the "new tribunal date," which could be over 6 month's away, surely my wife is entitled to something whilst appealing against their decision?
Also please can you tell me what type of letter that my wife needs her Doctor to write to the DWP, informing them that he disagrees with her being placed into the WRAG of ESA? Where it mentions that they could be placing my wife's "health and welfare" at risk and also make her condition even worse?
Thank you for all of your help and advice.
RW1
Last edit: 10 years 7 months ago by bro58.
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- bro58
10 years 7 months ago - 10 years 7 months ago #124967 by bro58
Hi RW1,
I am afraid that claimants are only entitled to 365 days payment of Contribution Based (CB) ESA at the Assessment Rate or in The WRAG or a combination of both.
12 Month Limit for ESA(CB)
The 365 Days entitlement to payment of CB ESA is for claimants "not in The Support Group" (SG)
Therefore, unless your wife is placed into The SG as a result of the fresh Tribunal hearing, her CB ESA payments will not resume.
I redraw your attention to Gordon's advice regarding Income Related (IR) ESA, in this post :
www.benefitsandwork.co.uk/forum?view=top...&mesid=124964#123759
Although a letter from your G.P. confirming your wife's medical conditions should help, it is important that it is also explained how the resulting limitations qualify your wife under at least one of :
The SG (LCWRA)Schedule 3 Functional Descriptors
You could print the descriptors off, and ask the G.P. which of the activities/descriptors they thought that your wife fulfilled.
If they could then tie in your wife's limitations with the actual descriptor/s, that should really help.
As a back-up submission, if you feel that your wife would suffer "Substantial Risk" to her own mental or physical health if she was not placed into The SG (Therefore had to comply with WFI/WRA in The WRAG) You could ask your G.P. to provide comment on how and why your wife or someone else would suffer said "Substantial Risk".
It is not enough to simply state that she would suffer "Substantial Risk" it needs to be explained, how and why.
So you would quote ESA Reg 35. (a) & (b)
"(a)the claimant suffers from some specific disease or bodily or mental disablement;"
&
"(b)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-related activity."
From :
ESA Reg 35 for entry to The SG (LCWRA)
Giving reasons.
bro58
Replied by bro58 on topic ESA
RW1 wrote: Hi,
Thanks for your reply, I am a bit confused now!
After the tribunal on the 30/5/2014, had over-ruled the Atos nurse's decision. The tribunal agreed that my wife met the "said descriptors" in section 1 and 2, and therefore be "treated as having limited capability for work."
They went on to say that having made the above findings, my wife did not meet the criteria for limited capability for work related activity under section 3.
But due to the fact that on the 2/8/2013 the Atos nurse said that there was nothing wrong with my wife, her money was cut down to £71pw. Whilst we appealed and waited for the tribunal date. On the 30/5/2014 when the tribunal upheld our appeal, then my wife's money was back dated to 2/8/2013.
But even though we have appealed against my wife being placed into the WRAG of ESA. Now the DWP have completely stopped my wife's money, due to the fact that she was receiving contribution based ESA (wrag).
Whilst awaiting the "new tribunal date," which could be over 6 month's away, surely my wife is entitled to something whilst appealing against their decision?
Also please can you tell me what type of letter that my wife needs her Doctor to write to the DWP, informing them that he disagrees with her being placed into the WRAG of ESA? Where it mentions that they could be placing my wife's "health and welfare" at risk and also make her condition even worse?
Thank you for all of your help and advice.
RW1
Hi RW1,
"
Whilst awaiting the "new tribunal date," which could be over 6 month's away, surely my wife is entitled to something whilst appealing against their decision?"
I am afraid that claimants are only entitled to 365 days payment of Contribution Based (CB) ESA at the Assessment Rate or in The WRAG or a combination of both.
12 Month Limit for ESA(CB)
The 365 Days entitlement to payment of CB ESA is for claimants "not in The Support Group" (SG)
Therefore, unless your wife is placed into The SG as a result of the fresh Tribunal hearing, her CB ESA payments will not resume.
I redraw your attention to Gordon's advice regarding Income Related (IR) ESA, in this post :
www.benefitsandwork.co.uk/forum?view=top...&mesid=124964#123759
"Also please can you tell me what type of letter that my wife needs her Doctor to write to the DWP, informing them that he disagrees with her being placed into the WRAG of ESA? Where it mentions that they could be placing my wife's "health and welfare" at risk and also make her condition even worse?"
Although a letter from your G.P. confirming your wife's medical conditions should help, it is important that it is also explained how the resulting limitations qualify your wife under at least one of :
The SG (LCWRA)Schedule 3 Functional Descriptors
You could print the descriptors off, and ask the G.P. which of the activities/descriptors they thought that your wife fulfilled.
If they could then tie in your wife's limitations with the actual descriptor/s, that should really help.
As a back-up submission, if you feel that your wife would suffer "Substantial Risk" to her own mental or physical health if she was not placed into The SG (Therefore had to comply with WFI/WRA in The WRAG) You could ask your G.P. to provide comment on how and why your wife or someone else would suffer said "Substantial Risk".
It is not enough to simply state that she would suffer "Substantial Risk" it needs to be explained, how and why.
So you would quote ESA Reg 35. (a) & (b)
"(a)the claimant suffers from some specific disease or bodily or mental disablement;"
&
"(b)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-related activity."
From :
ESA Reg 35 for entry to The SG (LCWRA)
Giving reasons.
bro58
Last edit: 10 years 7 months ago by bro58.
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