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Thread: Renewals/ESA50 Questions

  1. #21
    Senior Member nukecad's Avatar
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    Quote Originally Posted by DisturbedOne View Post
    I was never sent a letter about the WCA, nothing that addresses the interview over the phone or their decision to put me in to the LCW group, all's i received was a letter saying they've looked at my award again and changed my payments due to reaching the maximum numbers of days i can get contribution based ESA?
    Yes, you would get that about maximum number of days when moved from SG to WRAG because CB ESA would only be payable whilst you were in SG.
    (That's not actually important as you qualify for IR ESA anyway, but they have to put it).

    It does say that they have looked at your award again and reduced it, but that's nothing to do with the number of days, and it doesn't give the real reason for the reduction.

    I'd say you have got an oddly worded letter simply because they don't have a 'standard' letter to cover what they have done, so have tried to bodge a different letter.

    As you say you have to challenge (MR) why they have changed your group, especially as it's been done on just a telephone assessment.
    Ring them and request MR, ask for copies of the ESA85 Assessors report and the LT54 Decision Makers report.
    Last edited by nukecad; 05-01-21 at 15:12.
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  2. #22
    Well I've just got off the phone with them.
    They are at a loss as to why i've not had any letters about the WCA yet and they tell me they can't release the LT54 or ESA85 because it's not been cleared to do so. I requested they send them when they are cleared but I'll ring back in a week or so to follow up on it.
    What the nice chap on the phone did tell me is that he'll send out a MR form which should be with me by Monday and he'll follow up on why the WCA letters are still not available to be sent out and request a call back for me next week.
    He did manage to tell me the reason for the move was because i didn't score enough points but couldn't elaborate anymore than that.
    Now i guess it's just the process to go through before i take it to appeal as MR's i know have a very little chance of succeeding.
    Thank you again Nukecad for your advice, much appreciated.


    Update: Well I've just received a call back (very surprised) and they are going to send out the LT54 and ESA50 but they told me that in order to do so they would have to remove the Decision Makers name from the documents???
    I've never heard of such a thing, is this normal?
    Last edited by DisturbedOne; 07-01-21 at 13:13.

  3. #23
    Senior Member nukecad's Avatar
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    None of that is normal.

    The only normal thing is that they are now correctly sending you the requested documents as they should.
    Removing the names is normal, for individual privacy reasons.

    You don't need to use a from to request MR, they have one but there is no legal requirement to use it - Your phone call should have already started the MR process.
    https://www.gov.uk/mandatory-reconsi...econsideration
    How to ask for mandatory reconsideration

    Contact the benefits office that gave you the decision. You can contact them:

    by phone
    by letter
    by filling in and returning a form
    The form itself says on the front page:
    https://www.gov.uk/government/public...d-pensions-dwp
    It is easier to call
    You can ask for a Mandatory Reconsideration over the phone. Your
    claim will be looked at in exactly the same way. It’s much quicker and
    you can explain why you think the decision is wrong over the phone,
    without needing to fill anything in. The phone number to call is at the
    top of your decision letter
    His BS about the points is also just that, BS, their own guidance tells telephone assessors not to assess for LCW so they aren't even assessing for points.

    In effect the assessors have been told not to give any points for LCW, so it's hardly surprising that you 'didn't get enough'.
    (As the assessor isn't awarding points you should have zero points on the ESA85 when it comes).

    However the assessors are advising either LCWRA-Yes or LCWRA-No.

    So it is possible that your assessor has advised LCWRA-NO.

    The documents should tell you if/why that has happened and give you an better idea of how to challenge it.

    Reading all the guidance again it seems that if an assessor gives 'LCWRA-No' then it is possible for a LCWRA award to be reduced to LCW for an existing claim.
    That was never the intention, but it is legally possible.
    The intention was to ensure that people could be moved into LCWRA if they qualified, or stay on Assessment rate (or LCW).

    It was also intended that only those with LCWRA who were almost certain to be found LCWRA again would be referred for telephone reassessment.

    I'm guessing that was why the decision letter wasn't sent out, and the other stuff had not been cleared for release - it is a situation that wasn't intended to happen and someone was querying it internally?

    I'm searching for DWP guidance on what the Decision Maker should do if they get a LCWRA-No on an existing LCWRA claim.
    (I'm not optimistic of finding any as it's a situation that was never intended to happen).
    EDIT- As expected I can't find anything relevent to DMs. I've fired off an FoI request for any such guidance, but FoIs take time.

    TBH I believe that the decision should be fairly easy to over turn at appeal, if not at MR.
    Being a telephone assessment any tribunal is going to consider it an 'unsafe' decision to make.
    Last edited by nukecad; 07-01-21 at 20:10.
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  4. #24
    Senior Member nukecad's Avatar
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    If you have your previous letter from when you were last awarded Support Group/LCWRA then does it say anything about why Support Group/LCWRA was awarded?

    In particular I'm hoping for mention of 'Regulation 34', 'Regulation 35', special regulation', or 'risk of harm'.
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  5. #25
    Again, my apologies for the late reply. Not doing so well ATM.
    Yes my appeal for the last decision was won on Reg 29, " a serious risk of deterioration in his mental health".

    As for having zero points when the report comes, well I have been awarded 15 in the ESA 56 form but nothing is mentioned in the ESA85.
    Also no mention of LCWRA in the ESA85 a part from under Prognosis where it states "I advise that work could be considered in 12 months"

    Don't even want to get into the omissions, contradictions and flat out lies that were also included in that form..... Also no sign of the LT54. I have the ESA50/85/56, the ESA50 copy is also missing all the additional sheets I sent with it describing my conditions and how they affect me.
    Not sure sure how to challenge this without going in accusations of lying, would you perhaps have any small tips on where to start?
    Thanks again Nukecad.

  6. #26
    Senior Member nukecad's Avatar
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    The ESA56 may also be the LT54.
    What does it say in the bottom left corner?
    See this example: https://www.whatdotheyknow.com/reque..._passthrough=1

    The DM has just put 15 points because no assessment for LCW was carried out by the HCP. (That's why there are none in the ESA85).
    The DM can't remove LCW altogether without a F2F, so they have just put the required 15 points qualification. Just to keep the paperwork 'straight'.

    12 months is 'standard' for a telephone assessment prognosis, their guidance tells them to do that unless there is overwhelming evidence that it should be longer.
    ie. It's a delaying tactic hoping they can do a F2F in 12 months.

    I'd simply start the ball rolling by asking for MR of the decision to reduce your award based only on a telephone assessment rather than a full face to face assessment.
    You don't really need to say anymore than that.
    You could also argue that telephone assessments are described as being for the purpose of awarding LCWRA where a full Face to face assessment is unable to be carried out, the telephone assessment process was never intended to reduce existing awards.
    (It can do as you have found out, but that was not the intention).

    Did you get their form yet? (as said you don't need to use that but if they have sent it out it's evidence that you asked for MR in time).

    See what comes back from MR and if they don't change it back to LCWRA then it's time to appeal to the tribunal, on the same grounds.

    I do have an FoI in asking for copies of their guidance to Decision Makers about the situation, such as yours, where an existing LCWRA award is found LCWRA-No at a telephone assessment.
    By law they are supposed to reply to me by tomorrow at the latest, but they are often late.
    (Nowadays they blame it on Covid but they are always late when they don't want to give the information out).
    If/when that comes it may clarify things, but may simply confirm that what they have done is allowed by law but against the stated intention/spirit of telephone assessments.
    (Or it may just be a delaying-tactic answer, they are good at those as well when they don't want to give information out).

    PS. Reg 29 is not what I was hoping for. (And is actually confusing, if you were awarded LCWRA it shouldn't have been relevant).
    Reg 29 applies to LCW. Reg 35 is the equivalent for LCWRA.
    The fact that it was Reg 29 for 'Mental Health' could help if you have to go to appeal though.
    Last edited by nukecad; 05-02-21 at 08:57. Reason: corrected to read reg 35.
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  7. #27
    Senior Member nukecad's Avatar
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    I've ahd a reply to my FoI request.

    As suspected/expected they have taken the maximum time allowed legally, and then replied by giving links to information that I didn't ask for.
    It's one of their well known tactics when they don't want to give information out.

    So it's time for an Internal Review, and then to the ICO if they still won't reply.

    One thing they do say is that no specific guidance has been issued to Decision Makers about telephone WCAs.
    That so obviously can't be true that I'm surprised they said it.
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  8. #28
    Thanks Nukecad for your replies.

    I will be posting my MR this morning.
    Yes it's no surprise to me that they have done that with the FoI, I would be interested to hear your findings when they do eventually comply.

    As for the Reg 29.
    I was awarded LCWRA because of Reg 29 at appeal after being found fit for work at my last assessment. Looking at it online now it does seem that Reg 34 has the same descriptors as 29, what's the difference? Can't seem to find much apart from explanations of what the Regs mean.

  9. #29
    Senior Member nukecad's Avatar
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    They are similar but different:
    Reg 29(2)(b) awards LCW, it says that you, or others would be at risk if made to do any work, but may be able to do work related activity.

    Reg 35(2)(a)(b) awards LCWRA, it says that you, or others would be at risk if made to do any work related activity.

    PS. Apologies, I got the second reg number slightly wrong before because the same two regs are also in the legislation for NS ESA and UC.
    It's reg 35 in the old style ESA legislation, but reg 34 in the New Style ESA legislation. (That's what you get for going from memory and not checking).
    They are worded the same but have different numbers.

    So reg 29(2)(b) on it's own should only have awarded you LCW and not LCWRA.
    It's possible that one of the regualr descriptors applied for LCWRA, in which case the tribunal using reg 29 was surpurflous anyway but the tribunal may have wanted to cover all the bases.
    Last edited by nukecad; 05-02-21 at 09:03.
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  10. #30
    Hi Nukecad.
    Just got done requesting an appeal at the tribunal as the MR came back as expected. "No evidence to suggest..." (what i actually told them in my ESA50) and ignored my written statements and sided with the not so honest HCP... :/
    Was just wondering if you had any luck with the FoI you sent off yet, have you heard anything back form them yet?

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