ESA - Appeal turned down and new claim turned down. Advise please!

[james001]

Hi,

I previously posted on the forum on behalf my father. Just a brief breakdown of what has happened so far.

My father was on ESA Support Group back in 2016 with the disability premium.

In November 2016 he had a WCA again which he scored 0 points, appealed the decision and it went to tribunal in June 2017. My father was unable to attend the tribunal hearing that day as his condition was very bad that day. Called to advise the tribunal services of this and the tribunal carried on without attendance and they didn't find in our favour.

Since the initial WCA in November 2016 his condition has deterioted significantly and his medication has changed. We re-applied for ESA on the basis that his condition had deterioted since the last WCA. We received a letter requesting information on how the condition has changed and medical information. We replied to the letter and sent in the details of new medication, explained how the condition has changed.

Received a reply from DWP today stating that he's not entitled to ESA based on the WCA last done! We're really devastated as unsure of how to proceed. Since the new claim they have not carried out another WCA and are still referring back to the one done in November 2016. The letter does state that we can request for a mandatory reconsideration and I'm just seeking advise on what we can do next.

Should we request a mandatory reconsideration and ask them to perform a new WCA due to the condition and is it best to get some evidence from the doctor to support this?

Also I know during the appeal process that no money is paid due to the 6 month rule but if the mandatory reconsideration finds in our favor and the new claim is allowed will the assessment rate be paid until the WCA?

Also if the mandatory reconsideration doesn't find in our favor, if we wait 6 months and re-apply is the assessment rate paid straight away while waiting for WCA?

We are finding these new rules very confusing and any help would be greatly appreciate.

Thank you all so much for taking the time to read this.

[David69]

Hi James

Sounds like they are giving you the run around.
I would strongly recommend getting advice from a trained adviser ie. CAB, welfare rights or even Age UK.

You should get a supporting letter from GP and probably a good idea now is to get your MP involved ( never mind brexit, you need help now )

[nukecad]

Sorry to hear that James,

It sounds that they have decided that his condition has not deteriorated sufficently to re-qualify for payment of ESA Assessment Rate on a new claim.

Unfortunately that is their decision to make as the law stands.

Read the letter carefully again.
Is it saying that they have refused his reclaim entirely, or that he is not entitled to payment of ESA assessment rate?

This decision should not mean that the new claim has been refused entirely, the new claim should still be ongoing and he will probably be asked to a WCA, it should be just saying that they will not pay Assessment Rate ESA whilst it is being considered.
(I realise that it's a big 'just').

The 'six month rule' no longer applies, it was withdrawn and replaced by this new rule on 'new' or 'significantly deteriorated' conditions.
(This was done to stop people reapplying every six months when they had no realistic chance of ever being awarded ESA, but fancied a 'holiday' from JSA conditions).
Waiting six months before reclaiming now makes no difference at all, you can reclaim straight away after a refusal.

You can ask for MR (and appeal) of this decision, just like you can with most other decisions.
Remember that unless they have wrongly closed the claim altogether then this MR would only be about paying assessment rate while the claim is being decided.

I would read the letter carefully, just in case they have tried to close the reclaim altogether.
They should not do this, by current law they have to process the reclaim, but they don't have to pay assessment rate while doing it.
Unfortunately there have been reports that in some cases they are using these new rules to avoid even considering a reclaim, which is wrong.
(In these cases they say that there is nothing to re-assess because nothing has changed, that is not their decision to make without a new WCA).

I can't remember if you had CAB or anyone else helping you?
If not then now may be the time to get their help, they can read the letters and explain just what they are saying.

Here is an extract from the explanatory memo about the repeal of the 'six month rule'.
You can see from the lines I have highlighted that this decision should not stop a new WCA taking place, just stop payment of ESA at assessment rate until a WCA is carried out and a new decision made:

7.4 It is therefore intended that claimants making repeat claims for ESA will no longer be
treated as having LCW if they were found ‘fit for work’ following their most recent
WCA regardless of the period of time which has since elapsed unless they can
demonstrate that there has been a significant worsening in their health condition or that
a new health condition has developed. Since entitlement to ESA depends on the
claimant having, or being treated as having, LCW, this change will mean that
claimants in these circumstances will (unless they can demonstrate that there has been
a significant worsening in their health condition or that a new health condition has
developed) not be awarded ESA pending a fresh WCA. This should prevent people
claiming ESA instead of JSA through which they will receive the help and support
they need to return to work. It would also bring the conditionality arrangements for
such claimants broadly into line with those for Universal Credit.

http://www.legislation.gov.uk/uksi/2...0150437_en.pdf


PS. Of course if your father is awarded ESA after a new WCA (or appeal if necessary again) then it gets backpaid for the period where assessment rate was not paid.

[james001]

Hi

Thanks David69 and Nukecad, I really appreciate the time you've taken to reply.

I believe from the letter they have entirely closed the claim, correct me if I'm wrong though. I have copied what the letter says below:

06-Sep-2017

About your claim to Employment and Support Allowance

We have decided that you are not entitled to Employment and Support Allowance from 09.08.2017

This is because you have been found to be capable of work following your recent Work Capability Assessment

What to do you if you think this decision is wrong

Then it just states the MR and appeal process and it has the other benefits / contact numbers etc.

The letter mentions the "Recent Work capability assessment" but the last one done was back in 2016 which led to the refusal of the old claim.

Is there decision wrong in terms of that they should have at least arranged another assessment? I have contacted my local CAB office but they said they will contact me but I've not heard anything yet, Can anyone suggest what to write in the MR request? I've already contacted the Doctor who did say he will write a letter to confirm the condition has deteriorated in the last 12 months.

Thanks again and any help again would be great.

[nukecad]

Usual DWP clear as mud explanation.

As it stands that letter could mean either no assessment rate or case closed.

I guess it's time to ring them and try to clarify that the claim is still going to be assessed.

If they say not then quoting that explanatory memo at them may help a MR.

As you can see from the bit I highlighted they are still supposed to do a new WCA even if they don't award ESA payment at this stage "pending a fresh WCA".

If they are still going to do a fresh WCA then you can still ask for MR of the decision not to pay assessment rate, in that case you will have to try and show that the condition has indeed 'significantly' deteriorated.