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- Valerie
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10 years 3 months ago - 10 years 3 months ago #116326 by Valerie
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Hello there, you helped my son enormously last year and I am so happy I continued with the subscriptions as we need your help again …
My son is epileptic among other things, and was put on ESA a year or so ago and had to go to a couple of interviews with DWP people … one of whom said she thought he should have been put onto the Support group and should go to tribunal … after much help and advice here on the forum, I went with him in April last year as a representative, and we won the case … he already gets DLA for full care and his wife is his carer …
He has now been sent form ESA50 and asked to fill it in again …. His wife phoned up and asked why, as he is in the support group, and was told yes, but still have to fill them in every year …
As you can imagine, my son is not at his best and this has him now really worried … I have told him not to worry and would ask your advice …
I know he will probably have to fill them in again (actually his wife does the actual writing) … but can they take him off the support group ? …. Are there things he should be aware of …. Anything he can do or be made to do …
Thank you so much for any help and advice
Val
My son is epileptic among other things, and was put on ESA a year or so ago and had to go to a couple of interviews with DWP people … one of whom said she thought he should have been put onto the Support group and should go to tribunal … after much help and advice here on the forum, I went with him in April last year as a representative, and we won the case … he already gets DLA for full care and his wife is his carer …
He has now been sent form ESA50 and asked to fill it in again …. His wife phoned up and asked why, as he is in the support group, and was told yes, but still have to fill them in every year …
As you can imagine, my son is not at his best and this has him now really worried … I have told him not to worry and would ask your advice …
I know he will probably have to fill them in again (actually his wife does the actual writing) … but can they take him off the support group ? …. Are there things he should be aware of …. Anything he can do or be made to do …
Thank you so much for any help and advice
Val
Last edit: 10 years 3 months ago by Gordon.
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10 years 3 months ago #116330 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Advice please for further forms to fill in
Val
I am afraid that the DWP can re-assess a claimant at any time after 3 months have elapsed since a previous Decision, the Tribunal Decision to put your son in the Support Group applies from the same date as the original Decision that was appealed.
So his wife will need to complete this new ESA50 in detail and supply evidence to support his claim. It would be worth their looking at the Tribunal Decision notice to see why the panel awarded him the SG, this should guide them in regard to completing the form.
You mention his epilepsy, this condition in isolation cannot result in an SG award as there is no Descriptor that covers this, so he was either awarded the SG for another Descriptor or possibly the Exceptional Circumstances Regulation; 35(2)(b). If the latter then they will need to provide up to date evidence that there is still a danger to his health, or the health of others, the burden of proof on the EC's lies with the claimant not the DWP, so they will need to prove he still qualifies rather the DWP proving he does not.
Finally, any ESA re-assessment can result in any of the three possible outcomes; he remains in the SG, he is moved to the WRAG, he is found Fit for Work. These can all be appealed after a Mandatory Reconsideration has taken place.
I can't remember when he was last assessed, but you should be aware that the ESA Descriptors ad Regulations were updated in January 2013, so make sure that you/they use the latest guides.
Gordon
I am afraid that the DWP can re-assess a claimant at any time after 3 months have elapsed since a previous Decision, the Tribunal Decision to put your son in the Support Group applies from the same date as the original Decision that was appealed.
So his wife will need to complete this new ESA50 in detail and supply evidence to support his claim. It would be worth their looking at the Tribunal Decision notice to see why the panel awarded him the SG, this should guide them in regard to completing the form.
You mention his epilepsy, this condition in isolation cannot result in an SG award as there is no Descriptor that covers this, so he was either awarded the SG for another Descriptor or possibly the Exceptional Circumstances Regulation; 35(2)(b). If the latter then they will need to provide up to date evidence that there is still a danger to his health, or the health of others, the burden of proof on the EC's lies with the claimant not the DWP, so they will need to prove he still qualifies rather the DWP proving he does not.
Finally, any ESA re-assessment can result in any of the three possible outcomes; he remains in the SG, he is moved to the WRAG, he is found Fit for Work. These can all be appealed after a Mandatory Reconsideration has taken place.
I can't remember when he was last assessed, but you should be aware that the ESA Descriptors ad Regulations were updated in January 2013, so make sure that you/they use the latest guides.
Gordon
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10 years 3 months ago - 10 years 3 months ago #116341 by Valerie
Replied by Valerie on topic Advice please for further forms to fill in
Thanks Gordon .... this is the first time he has been re-assessed since the tribunal and looking at their award notice they do say he qualified for the SG under Exceptional Circumstances rule under substantial risk to himself or others ... and that the tribunal received cogent oral evidence in relation to mental factors ....
He has real bad panic attacks at times ( this is all through the epilepsy), has no warnings of attacks which he can get anytime day or night and has sleep apnoea which unfortunately the hospital cannot help him further with as he cannot wear the mouth thing during the night as he sometimes has seizures in sleep ... so suffers a lack of oxygen which doesn't make him the brightest spark during the day ...
I will check out the new rules but he was assessed by the tribunal in March 2013 (not April as I thought earlier) so they should have been used ...
Many thanks for advice ... just another waiting game I guess and a very panicky time for him '''
Val
He has real bad panic attacks at times ( this is all through the epilepsy), has no warnings of attacks which he can get anytime day or night and has sleep apnoea which unfortunately the hospital cannot help him further with as he cannot wear the mouth thing during the night as he sometimes has seizures in sleep ... so suffers a lack of oxygen which doesn't make him the brightest spark during the day ...
I will check out the new rules but he was assessed by the tribunal in March 2013 (not April as I thought earlier) so they should have been used ...
Many thanks for advice ... just another waiting game I guess and a very panicky time for him '''
Val
Last edit: 10 years 3 months ago by Gordon.
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10 years 3 months ago #116344 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Advice please for further forms to fill in
Val
The Tribunal panel would have reviewed his claim under the rules in force when the original Decision was made, not when the hearing was help, so I would expect this to have been under the old rules.
If he qualified on Reg. 35 then you really need to show that he still has the same problems, this really needs to be supported by new medical evidence.
Gordon
The Tribunal panel would have reviewed his claim under the rules in force when the original Decision was made, not when the hearing was help, so I would expect this to have been under the old rules.
If he qualified on Reg. 35 then you really need to show that he still has the same problems, this really needs to be supported by new medical evidence.
Gordon
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10 years 3 months ago #116346 by Valerie
Replied by Valerie on topic Advice please for further forms to fill in
Ahh that makes a difference as the original decision was made in April 2012, yes, it took that long to get it to tribunal !
Many thanks I will go find the relevant stuff here
Val
Many thanks I will go find the relevant stuff here
Val
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