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Thread: E.s.a. Problems

  1. #1
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    E.s.a. Problems

    Greetings... my partner and i are posting this to make others aware of what can happen...... my partner has me/cfs and until feb 2013 was on the old incapacity benefit.... and low rate DLA care . she was reassesd and placed in the contribution based e.s.a in february 2013.... no one told us about the 365 day ruling we found out via the internet..... when she last saw a dwp advisor in december she was told that she would need to re-apply in early feb to be moved onto the income related e.s.a. because we are a couple we were told she would need to claim for us both... as i myself am also on esa contribution based at least till july 2014 when my 365 days run out... we were advised by the dwp that all that would be taken into account and that yes under the rules we would be losing at least 70 percent of her money as my esa would be taken into account.... well we filled the forms in and posted them back in good time for them to reach the dwp... to be precise i posted them on the 29th january....... we had no letters at all from dwp although according to their records we were sent letters to say my partner needed to send forms etc......... when it got to her last pay date which was 21st feb 2014 we rang them to make sure everything was being worked on... to be told that there was no record of them receiving the new forms at all and as such her benefit was stopped totally....... they have sent fresh forms to fill in and hopefully something will get sorted out...... will keep you posted...... you can imagine the stress and anxiety that this has caused and please if you have been moved onto esa contribution based check your 365 day limit and get help with the forms we tried getting mind to help and they wouldnt saying they didnt have the funding.... we tried cab to be told the same thing and equal lives were going to help until the outreach worker went off sick with stress..... thanks for listening...... wolf

  2. #2
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    Unfortunately the 52 week limit for Contributions Based ESA in the Work Related Activity Group is catching out a lot of people, especially those who have been reassessed from older benefits.

    There is no time limit for Income Related ESA, or for Contributions Based ESA for those in the Support Group.


    As you say, Income Related ESA is assessed jointly, which means this policy is causing particular problems for couples.

  3. #3
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    I would suggest you re-examine you're case of claim for grounds to both late Appeal and entry to Support Group. Although the time limit for Appeal is 1 month the maximum limit for late Appeal is 13 months, entry to Support Group is shown by eligibility for award of one of the Schedule 3 Descriptors, but you do have to demonstrate grounds for both of these.

    Your wife will now have to wait until her next assessment to see if she can qualify for Support Group to restart benefit in her own right (CB ESA), or if there are grounds ask (the DWP) for a supersession/review of her present claim.

    I think these are the only options open to you both to IR ESA.

  4. #4
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    umm firstly Equal lives advised us to cancel her initial appeal because there outreach worker didnt think we'd win..... we cancelled and due to dwp cock-up it went ahead anyway and she stayed in the wrg group.... we jumped through all the hoops and got all the forms to them well ahead of time........ its a dwp cock-up that has seen her benefit stopped and the nasty bitch in liverpool said there was nothing they were prepared to do..... they are sending fresh forms but it looks like from what the person on the phone said that because she ignored letters and didnt send the forms in then they would probably not reinstate her benefit...... we received no letters at all and it was from her last assesment in december that the lady gave her the forms and told her when to send them in... unfortunately rofl the dwp have pensioned her off so we cant even get her support (handy that) This has come at the end of 3 years of fighting the bas..... she has me/cfs .... i have severe stress depression...... mind refused to help saying they didnt have the funding ..... equal lives have pretty much said the same...... and our local cab because of the rural location cant help either ... oh and jo should have retired this year as she's 60 but because of the changes she has to wait till 2020.... and as for waiting for her next assesment there wont be one they have stopped her claim dead

  5. #5
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    Unfortunately, sunwolf, the only way you can challenge the 52 week limit imposed on Contributions Based ESA payments for those who are not in the Support Group is via political means. There is no "magic back door" to get around it in individual cases. The only way to evade its effects is to be moved into the Support Group, which means the limit no longer applies.


    Your wife's decision stands for now.

    If you didn't want the tribunal to go ahead, your wife would have had to tell HM Courts and Tribunals Service that she didn't want the tribunal to go ahead. However, there was really no point discontinuing the appeal. She might have got into the Support Group notwithstanding her outreach worker's advice that there were no grounds, and it was unlikely that the tribunal would have found her Fit to Work.

    You cannot appeal against a tribunal's findings unless there was an error of law at the tribunal. However, you are wrong to state there will not be a next assessment - she remains on Contributions Based ESA at the nil rate. At some point she will be reassessed, and if this reassessment moves her to the Support Group, ESA payments will restart.


    The reality is that if two advice agencies both said there were no grounds for your wife to be placed into the Support Group, this is probably correct. I am very familiar with ME - my girlfriend has had it for over 20 years, it affects the lives of several good friends and I have been involved with some of the ME charities.

    I know ME can create tremendous barriers to work and to daily living, but does not always impair those physical abilities relevant to the ESA criteria sufficiently to qualify a claimant with ME for the Support Group.

    The alternate route into the Support Group, by claiming that Work Related Activity would represent a substantial risk to the claimant or someone else (ESA Regulation 35), is difficult to sustain. The usual practice of tribunals, following a lot of Upper Tribunal activity on this point, is to ask DWP to detail what Work Related Activity they intend to require of the claimant after consideration of the claimant's circumstances. If the answer is "none, just an occasional Work Focused Interview that could be over the telephone", you cannot demonstrate that nothing at all places the claimant at "substantial risk".


    The lost Income Related ESA form is distressing, but the reality is that post goes missing or is never sent owing to administrative errors. For now, it's best to concentrate on returning the replacement form.


    The cuts to advice services are partly because all Legal Aid funding for benefits matters, other than appeals to the Upper Tribunals and the courts on points of law, was discontinued from April 2013 to implement part of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Most of this Legal Aid money went to organisations like Citizen's Advice. The justification was that claimants did not need help to apply for benefits or appeal to a tribunal - which is clearly not true.

    At the same time as the Legal Aid cuts, most councils that still provided discretionary welfare rights funding had to reduce or eliminate that support because they needed the money for statutory services (those the law requires them to provide).

    The number of cases relating to ESA was shooting up as these cuts began to bite because the first people subject to the 52 week limit lost their ESA payments from May 2013. The advice providers simply cannot cope with this increased workload on fewer resources, so the only thing they can do from an ethical perspective is limit their help to the cases they can manage and regretfully tell everyone else they are unable to help.

  6. #6
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    Just to add something re advice agencies, they can be wrong, my welfare officer said I would find it very hard to get into the support group and they would not take the case, but I saw my doctor who was horrified, wrote me a letter and I sent in some more information and I was put into the support group at reconsideration under Reg 35, when I told WRO they said well done but I have their letter that says it will be very hard so don't give up. Hope this helps.
    Mags

  7. #7
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    Quote Originally Posted by Mags4 View Post
    Just to add something re advice agencies, they can be wrong, my welfare officer said I would find it very hard to get into the support group and they would not take the case, but I saw my doctor who was horrified, wrote me a letter and I sent in some more information and I was put into the support group at reconsideration under Reg 35, when I told WRO they said well done but I have their letter that says it will be very hard so don't give up.
    That's very good advice, Mags. Just because an advisor says something is very difficult doesn't mean it is impossible.

    In the case of sunwolf's wife, I was suggesting that it might well be that she doesn't qualify for the Support Group considering that the decision maker, two advice agencies and a tribunal all agree. However, that doesn't mean she will continue to remain outside the Support Group, especially if the next attempt to qualify is supported by stronger evidence.

  8. #8
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    Quote Originally Posted by Flymo View Post
    That's very good advice, Mags. Just because an advisor says something is very difficult doesn't mean it is impossible.

    In the case of sunwolf's wife, I was suggesting that it might well be that she doesn't qualify for the Support Group considering that the decision maker, two advice agencies and a tribunal all agree. However, that doesn't mean she will continue to remain outside the Support Group, especially if the next attempt to qualify is supported by stronger evidence.
    Ooops brain fog, sorry didn't read the original post properly

    Mags

  9. #9
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    Quote Originally Posted by Mags4 View Post
    Ooops brain fog, sorry didn't read the original post properly
    There's nothing to be sorry about! You raised a really important point that was missing from my earlier answer about advisors (and Flymos) being fallible.


    In the case of sunwolf's wife, four people or groups of people with experience of the system, including a DWP decision maker and a tribunal panel, have all looked at the situation and reached the same conclusion. It therefore seems likely that the decision she does not qualify for the Support Group is correct. In practice, it's likely that at least two DWP decision makers have taken a look, as it was routine practice before mandatory reconsideration for a decision to be looked at again on the way to tribunal even if there had been no reconsideration request.

    Sometimes, regretfully, the only way ahead is to accept the outcome you don't want. Even then, it's possible that we're all wrong. If new information comes to light, or an Upper Tribunal decision clarifies the correct way to apply the law, it is possible that a different decision would be reached on the same facts. If sunwolf's wife deteriorates in any way, it's worth reporting a change of circumstances to see if that tips the balance and places her in the Support Group.


    As for brain fog, I'm amazed at how lucid I can be at times. Sometimes I look back on something I wrote a few days earlier and am amazed at the depth of insight I showed.

    Brain fog ranks along with fatigue and pain as desperately frustrating symptoms. I could do so much more with more strength and a clear mind all the time.

  10. #10
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    umm some nice points in the above.... but.. were not questioning the decision to put her in the wrg... its the pure simple fact that without any forewarning they have cut her benefit off totally..... saying there was no record of her having sent any forms in to them at all .. there is no record on file (apparently) from the her last face to face assessment where she was given the necessary forms and told when to send them in , so that her claim should move relatively easily form cont based to income based esa.. and having spoken to a few people it seems shes not the only one to have paperwork/records dissappear but one interesting thing that came from a phone call today with the equal lives people.... claimants do have the right to request a vist from the DWP HOME VISIT TEAM to deal with such issues..... dont hold out much hope on that but will let you know..... regards wolf

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