WRAG

Rose Hip wrote: Hi, me again.
I appealed and received acknowledgment that this was lodged.
I wrote two separate letters - the first requesting a Statement of Reasons and the second (about a week later with a SAR form asking for all the documents used. I had nothing back from either.
My interview at the Job Centre was made into a phone interview after I called them and explained things - the lady was very nice and obviously had better things to do than waste her time trying to find out about my job prospects, but we had to go through a lot of stuff regardless. She's going to call every 3 months whilst the appeal is going through. That's OK.
She confirmed she had details on her screen about the appeal and I asked if my requests for documents were there, No but she got the office who would know to call me. This they did and were in Kilmarnock (not where I 'd sent my letters & ESA50). They had no requests on their system, but did agree to send me an ESA85A, which arrived.

Should I write again for the other documents?
The assessment says I'd likely score over threshold for mobilising, standing, sitting & reaching and that this is confirmed by a Med3 & 113. This they say meets the criteria for having limited capability for work.
I've since discovered a worsening of my medical problem- which existed when I filled in the form but I was ignorant of this at that time. My GP thinks spinal surgery will be needed and is pressing me to go for further consultations. I have asked him for an additional response for my appeal which includes these developments. My physio has also offered to make a statement.

Any other advice please at this stage?
My thanks

Hi RH,

The ESA85A seems to cover the reasons why you were placed into The WRAG.

If you wish to still receive the other documents, you could post a reminder to The DWP, with the threat of a complaint to ICO. :

www.ico.org.uk/complaints

SAR :

www.dwp.gov.uk/docs/request-for-personal-information.rtf

From this page :

www.dwp.gov.uk/privacy-policy/data-protection/

Sending Documents to the DWP or ATOS

You may wish to request "ALL" documentation used in coming to the WRAG decision to cover all bases.

Any fresh evidence that you may obtain regarding a different type of medical condition or a detrioration, "Must" be tied to the time of the WRAG award, or it will not be taken into account.

bro58

I understand - hopefully my GP will make it clear that the situation, though newly revealed, existed when I filled in the ESA50 but that I was ignorant of it at the time. Would they then take this on-board as it had not developed after submitting said ESA50??

Could you also say what would be the best approach regarding the grounds of 'substantial (physical) risk' by being placed in the WRAG group. My life is a balancing act and my condition would most definitely deteriorate if placed under further duress. I was intending to challenge their assertion that the decision would not affect me in this regard.
I wonder what more evidence I can possibly produce.

Rose Hip wrote: I understand - hopefully my GP will make it clear that the situation, though newly revealed, existed when I filled in the ESA50 but that I was ignorant of it at the time. Would they then take this on-board as it had not developed after submitting said ESA50??

Could you also say what would be the best approach regarding the grounds of 'substantial (physical) risk' by being placed in the WRAG group. My life is a balancing act and my condition would most definitely deteriorate if placed under further duress. I was intending to challenge their assertion that the decision would not affect me in this regard.
I wonder what more evidence I can possibly produce.

Hi RH,

Even though this fresh evidence, if tied to the time of the WRAG award may help, the important issue is to show that your "Limitations" at the time of the adverse WRAG award should have resulted in an award of SG, in that you fulfilled at least one of The SG Descriptors.

Therefore, try and use any evidence as above to reiterate that fact.

To qualify under ESA Reg 35, you must show with evidence that you or someone else would suffer "Substantial Risk" to your health, if you were forced to take part in WFI's and WRA :

ESA Reg 35 for entry to The SG (LCWRA)

PLUS Post 28/01/13 Amendment of :

(3) In regulation 35(1) (certain claimants to be treated as having limited capability for work-related activity)(6), for sub-paragraph (b) substitute—

“(b)the claimant is-

(i)receiving treatment for cancer by way of chemotherapy or radiotherapy;

(ii)likely to receive such treatment within six months after the date of the determination of capability for work-related activity; or

(iii)recovering from such treatment,

and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or”.

From :

www.legislation.gov.uk/uksi/2012/3096/regulation/4/made

There is no legal definition of "Substantial", but it would have to be above average risk.

The best way to look at this is to break down all the different elements of having to attend WFI's etc, including travel to and from, and tie in any Substantial Risk involved with your own limitations.

It would not be enough to simply state that you feel that you qualify under ESA Reg 35, you would have to provide evidence.

Obviously, any input from your G.P. or other treating HCP regarding ESA Reg 35 should help.

Sometimes it is enough to reiterate information in a more precise format, to gain success in an automatic reconsideration/appeal.

bro58

Thanks bro58.
I sometimes think that my brain has ceased to function when I read some of these regulations. The language is often clearly designed to imply one thing when meaning another. I think it would fail the 'Plain English' test.
I will gather together whatever I can. When I've got everything ready do I send it to the same place that hasn't received anything else I sent? Or should I send it to Kilmarnock (they sent me an envelope with the ESA85A, together with a 'If you think our decision is wrong' leaflet - but I've already lodged an appeal???

I think that's all I need at the moment.
Am grateful.

Hi Rose hip
With my ESA85a there was also an LT54 and a ESA56

Rose Hip wrote: Thanks bro58.
I sometimes think that my brain has ceased to function when I read some of these regulations. The language is often clearly designed to imply one thing when meaning another. I think it would fail the 'Plain English' test.
I will gather together whatever I can. When I've got everything ready do I send it to the same place that hasn't received anything else I sent? Or should I send it to Kilmarnock (they sent me an envelope with the ESA85A, together with a 'If you think our decision is wrong' leaflet - but I've already lodged an appeal???

I think that's all I need at the moment.
Am grateful.

Hi RH,

I would send any fresh evidence to the same address as your appeal went to.

Don't forget to put a covering letter with it, stating that you wish this fresh evidence to be taken into account.

Put your name, NI Number and DOB at the top of any seperate pages.

With regards to ESA Reg 35, pertaining to "Substantial Risk" it would be ESA Reg 35 (2) (a) & (b) that you would have to cite and prove :

"35

(2)

(a)the claimant suffers from some specific disease or bodily or mental disablement;

and

(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."

You may also wish to mention ESA Reg 34, if you feel it is applicable to your entry to The SG :

ESA Reg 34. (2) Applicable to Support Group :

“A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor”

www.legislation.gov.uk/uksi/2008/794/regulation/34/made

You may also wish to have a look at the relevant DM Guides :

DM Guide LCW & LCWRA

&

DM Guide ESA Amendments from 28/01/13

bro58