Esa zero points help needed

[Peter]

I had a maximus esa medical and scored zero points. The hcp has told lies on the form and has got a lot of info incorrect. He has stated several things that i am unsure how to prove are wrong. I have a damaged spinal cord and am waiting for a 3rd spinal fusion in 4 years live in constant pain and am on a lot of painkillers. I dont know how to prove what i can or cannot do. I have had to sign onto jsa but my doctor has gave me a med cert and says he will continue doing so for as long as needed. My doc/hospital notes state what i have had done fusions etc but i dont have written proof of what i can or cannot do. Any help welcome.

[pmlindyloo]

First of all you can have 13 weeks of extended sickness whilst on JSA - fit note should be presented after your first JSA interview and JSA is in payment. During this time you should not be expected to fulfil your job seekers agreement unless you feel able to do so.

As regards the appeal you need to do a mandatory reconsideration first. This should be done within a month of the date of your decision letter. You can ask for an extension if you need to get help/support from an advice worker.

If you have a CAB near you then I would ask them for some help with the MR.

You need to look at where you think you should have gained points and write why you think you should have been awarded those points. It is also important that you send further evidence form your medical professionals.

Are you most concerned about your ability to mobilise and disagree with their decision? If your doctor is supportive then you could show him the descriptor that you think you meet and ask him to support you using his medical knowledge. For example he could say that your condition means that you are unable to walk more than *** metres without considerable pain and without stopping to rest every *** mins. Be aware that mobilising includes the use of a manual wheelchair so you would have to say why you cannot self propel - for example, the act of self propelling causes stress on your back and causes severe pain/worsens your pain to the extent that this cannot be achieved. Doctor can also write about your level of medication and the results of this - pain not managed despite...............

Hope this has helped.

CAB has useful information here:

https://www.citizensadvice.org.uk/be.../fill-in-form/[/B]

which you could use for your appeal.

[nukecad]

You will need to ask for a Mandatory Reconsideration, and probably then appeal to the Independent Tribunal, see below.

You have to show that what the assessor said was wrong.
Calmly repeat what he has not told the truth about and explain why this is not true. (Don't go shouting 'he's a liar', keep it calm and factual).
Do this for each point that he has got wrong.
TBH nobody has written proof of what they can or cannot do (who would write it?), it is about what could be reasonably expected given your condition(s).

Your doctor sound supportive, would he write a letter saying in his opinion what it would or would not be possible for you to manage?
If he could tailor that to refute what the assessor has said then so much the better.

Here's the standard bit about making a request for Mandatory Reconsideration.

How Mandatory Reconsideration and Having to claim Jobseekers Allowance (JSA) or Universal Credit (UC) works.

Mandatory Reconsideration-

Your first step is to start by following the instructions in the rejection letter you've received to request a Mandatory Reconsideration.
You only have a month from the date on the letter to do this so don't hang about.
(From now on keep notes of all phone calls and copies of all letters sent, get at least proof of posting for all letters).

You should do this by first phoning them, saying that you want a MR and that you will be making a written submission.
While on the phone request from them your Assessment Report (ESA85) and the Decision Makers report (LT54), these will help you to see why you were refused and what to concentrate on to try and get your points score increased.

Use this information to write a letter explaining why you think the original decision was wrong.
Just explain why you think you qualify for the points on the relevant descriptors.

Don't go into things like "what the assessor wrote was I lie, I never said that". That is for a complaint not a MR.
You are having another chance here to influence a Decision Maker with the facts, arguing with what the assessor wrote will not help.

(Expect this MR to fail, not all do but most do, think of it as a practice for your appeal - most of which win).

Claiming JSA whilst awaiting MR- (see below for Universal Credit).

Whilst you are waiting for the MR you will have to claim Jobseekers Allowance, or Universal Credit if you want to keep receiving benefit.
If it then goes to appeal after MR you can go back onto assessment rate ESA until the tribunal decision. (Provided you were on ESA, assessment or full rate before the fit-for-work decision).

If you have been claiming JSA during MR then you have to ask to be put back onto assessment rate. The advisors are told not to ask you.
Or you can stay on JSA, the jobcentres prefer you to stay on JSA but it's up to you.

The Jobcentres are aware of this strange situation, when you sign onto JSA/UC you tell them you are doing so because of an ESA MR and they don't (shouldnt) give you the same claimant commitments as a regular jobseeker.
(Be careful what you say though, if you refuse to do any jobseekers comitments at all they can refuse your JSA/UC claim; they shouldn't but some bad advisors do).

The fact that you are having to claim JSA/UC in this situation has no bearing whatsoever on your MR (or your tribunal appeal if needed).
The MR (and tribunal) can only consider the circumstances at the date of your original claim, not what has happened since then.

If they try to give you commitments that are too difficult for you all you can do is remind them that you are awaiting a ESA reconsideration because you have ill health.
Try to point out how you condition affects your ability to do the commitments they ask for.
For example, they may ask you to do so many hours searching for jobs. As most of this is done on a computer these days say that you can do this at home but cannot manage to go to the Jobcentre multiple times a week.

Unfortunately the current government stance is that you have been found fit-for-work at a WCA and so have to claim JSA/UC until found not-capable-of-work at MR (or until you appeal to tribunal).

Extended Period of Sickness whilst claiming JSA-
The JSA rules mean that those claiming Jobseekers Alowance can have a period of 'Extended Sickness' for up to 13 weeks.
So if you sign on to JSA during your Mandatory reconsideration, you should be able to supply 'sicknotes' and you can go into this 13 week sickness period.

The rules/guidance say that JSA must be ‘in payment’ before you can go on extended sickness, so you should sign on for JSA first telling them you are doing an ESA MR; and then go sick once your first JSA payment has been made.
If you try to go sick before your first payment they may refuse your JSA claim altogether.

Hopefully the MR will have been completed before these 13 weeks extended sickness are up and you will have been awarded ESA, or can go back onto ESA assessment rate during appeal.

Universal Credit Areas
In Universal Credit ‘Full Service’ areas you claim Universal Credit instead of JSA.
In Universal Credit ‘Live Service’ areas you still claim JSA because:

• Although new claims for Income Related JSA (and IR ESA) have been replaced by Universal Credit in some areas this is only for new claims that fit the 'Gateway Conditions'.
• Claims for IR JSA (and IR ESA) are still valid if you do not satisfy the UC Gateway Conditions.
• Currently Because your existing ESA claim has gone to Mandatory Reconsideration you do not fit the Gateway Conditions and so are still able to claim Income Related JSA during your MR.
• If you are in a UC ‘live service’ area and they try to make you claim UC instead of JSA, politely point out that you do not fit the Gateway Conditions.

Again if you have to appeal to the court you can ask to go back onto ESA once your appeal is accepted by the court, but you should be aware that Jobcenters routinely, wrongly, tell people that they cannot go back to ESA during appeal once they have claimed UC.
This is wrong, the law says that you can.
If that happens to you ask us for more advice.

Contribution Based ESA or JSA is not affected by UC and you should be able to claim CB JSA during an ESA MR.
(Although there is a six month limit for CB JSA, which in this case includes the time spent on CB ESA asessment rate).

Housing Benefit and Council Tax-

You should let your Council know what is happening, for Housing Benefit and Council Tax Relief reasons.
They have probably already been informed by the DWP that your ESA has stopped.

Again they are used to this situation with MRs now and as long as they know you should have no problems; or at least less problems than if you don't tell them.

[Peter]

Pmlindyloo. MR is already sent and i did have cab support writing it but i expect to have to go to appeal. The hcp has told lies but i dont know how to challange that and the cab told me not to during mr but to complain to maximus. I am trying to get proof of what i cant do. I struggle with movement and believe i should have been awarded the descriptor that says i cant move from 1 seat 2 another hcp said he had to help me up both times but gave 0 points as he said my patten of movement was inconsistant. Same goes for walking i have nerve damage and fall over if not supported yet he says my partner is there just as confidence issues. If i can work out the right questions to ask my doctor i believe he will help. He told me to ring neuro and i did but they said they cant list what i am unable to do. Thanks for the reply sorry if my posts seem a muddle the morphine has that effect on me.

[Peter]

Nukecad. Thank you for the reply. I did not know that noone has the info i am seeking but feel a little better now knowing no one else does. The cab wrote my mr letter for me and he said he thinks i should score at least 37 points but not to expect mr to change things and i will have to be ready for appeal.
I do think my doctor will support me he is very good he just does not understand how they can state i am fit for work when i need 2 vertabrae removed and my spinalcord is damaged. He did say he is not qualified to say much but if i can find out the correct questions to ask i do think he will help as he did write a supporting letter b4 the medical..

[Peter]

In regard to the lies from the hcp. He states i can but do not drive because i believe i could cause harm to myself or others and that shows i am aware of danger. I did not expect points for that anyhow as i am aware of danger but i have never had a licence or a car and would not have suggested i have. He also says i have been given a walking stick by physio but dont use it but i have not and physio done 1 assesment and sent me back to neuro as i wasnt ready for treatment yet. The whole report is riddled with lies from hcp and if i cant challange that how can i overturn it ?

[nukecad]

It's good to hear that you have already contacted CAB and that they have written your MR letter for you.

They deal with this all the time and so know just what will be the best to help in your particular case.

As they say, don't expect too much from the MR and be prepared that you may have to go to the independent tribunal.
Only 11% of decisions get changed at MR, 65% of those who go on to appeal are successful.

Again, as CAB rightly say, the MR and appeal process is not for complaining about the assessor, it's about getting the correct award.
If you want to complain then do so, but keep it seperate from the MR/appeal.

It's not all bad news, remember you only see those who have bad decisions on forums like this.
Those who have no problems don't need to post so you don't see them, it can make things look a bit one sided.

Just to show it can be done there was a MR success reported on the forum today, now they have their award sorted they are going to make their complaint about the assessor. http://www.youreable.com/forums/show...ration-success!

[Peter]

Thanks nukecad. Any ideas how long a MR takes i have been waiting 2 weeks now but dont have any idea how long i am expected to wait ??

[Jard]

There's no rule governing how long they can take on an MR, some may take 2weeks others up to 8 or more, I would suggest you use the time wisely by looking at the ESA Descriptors and putting your arguments together to show how you meet the ones that appear to represent your case the best, this can pay dividends if you go to Tribunal.

[Peter]

Jard. Thank you i am trying to do just that. Going to use the list the cab sent with the mr form and ask my doctor to write a supporting letter saying what he thinks. Also going to try neuro again to see if they can help now i have a better idea what to ask for.