ESA assessment rate query

Hi,

My sister was on ESA WRAG benefit until she had an ESA medical and was found fit for work. She appealed and had to wait until the mandatory consideration took place so in the meantime claimed jobseekers allowance as she had no money.

The mandatory decision was unchanged and they forwarded the appeal to a tribunal. The tribunal acknowledged they had received the appeal and also forwarded the papers to the DWP. She then assumed she would be able to claim ESA Assesment rate benefit rather than continue on jobseekers allowance while she waited for her tribunal date and she got the local advice shop to fax the sicknotes that she had.

I then phoned on her behalf the DWP to confirm they had received these and could she now be put on the ESA assessment rate rather than jobseekers allowance. The guy said yes they had received them but she couldn't go onto the assessment rate and had to remain on jobseekers allowance. I was rather surprised and questioned if this was right but he insisted it was.

Is he right in what he says and have I got it wrong?

Hi Pp,

There is some Decision Maker Guidance on this, see this extract :

"Example 1.

An ESA claimant attends a WCA and the DM subsequently determines that they do not have LCW. The award is superseded so as to end entitlement to ESA. The claimant disputes the decision and asks for a reconsideration.

No pending appeal award of ESA can be made and they make a claim to JSA. JSA is awarded to the claimant. The DM decides that the decision cannot be revised and informs the claimant. The claimant lodges an appeal with HMCTS and submits medical evidence.

They ask for ESA to be re-awarded. The award of JSA is terminated by means of a supersession and a pending appeal award of ESA is made without the need for a claim. ESA is awarded from the day after the JSA award ends."

From :

This document : (Memo DMG 20/13. MANDATORY RECONSIDERATION PRIOR TO APPEAL AND DIRECT LODGEMENT OF APPEALS WITH HMCTS)

It would seem that the JSA claim should be closed, which should then trigger the payment of ESA Assessment Rate.

However, there does seem to be much misinformation from the DWP regarding this, in that they are stating that a fresh ESA claim must be made when closing The JSA claim.

A similar scenario is being discussed on rightsnet :

www.rightsnet.org.uk/forums/viewthread/6444/

N.B. Update : See : This Topic and the links to other posts therein regarding 30/03/15 changes to ESA Regs pertaining to Repeat ESA Claims and appealing a second successive fit for work decision.

bro58

Thanks Gordon, you've put my mind at rest.

One more question if you have the time, if I phone again and they still refuse, is there any other avenue to get her switched back? And would they be more likely to take the situation more seriously if someone from Citizens Advice/Advice shop made the call?

It seems crazy that something she is entitled to is at the mercy of someone who either doesn't know the rules or doesn't want to help.

Thanks for your help.

Pedropete wrote: Thanks Gordon, you've put my mind at rest.

One more question if you have the time, if I phone again and they still refuse, is there any other avenue to get her switched back? And would they be more likely to take the situation more seriously if someone from Citizens Advice/Advice shop made the call?

It seems crazy that something she is entitled to is at the mercy of someone who either doesn't know the rules or doesn't want to help.

Thanks for your help.

Hi Pp,

See my post before your last one :

www.benefitsandwork.co.uk/forum?view=top...=10&id=101427#122005

So the scenario that you are querying is covered at "Example 1. of Memo DMG 20/13. MANDATORY RECONSIDERATION PRIOR TO APPEAL AND DIRECT LODGEMENT OF APPEALS WITH HMCTS.

To clarify the extract that I have given :

"and the DM subsequently determines that they do not have LCW." = The DM finds them "fit for work".

"and submits medical evidence." = obtains a fit note from the G.P.

You could contact CAB or the like, if you cite the above to The DWP and they still insist that ESA Assessment Rate cannot be paid.

bro58

Thanks bro58. I'll give them a call and use the information you provided. Hopefully they'll see sense.