Going back on ESA whilst appealing

My friend's filed an appeal with the FTT against the decision to take away his ESA. I'd advised him that he just needed to write to the DWP to tell them that he wanted to be put back on ESA at the assessment rate whilst the appeal is waiting to be heard, as I'd got the impression that was all that was necessary from what I'd read.

Anyway, he either forgot what I'd said or decided he'd better check with the DWP what he needed to do. First he asked at the JC and was told repeatedly by several different people something along the lines of "oh no, you can't do that, you have to stay on JSA", so either they've not been trained properly or have been told to deliberately misinform people.

Then he phoned the DWP and they told him he just needed to write a letter and get a sick note from his GP covering the period from when his ESA was stopped, take that to the JC and get them to scan it and forward it onto them. He first had to get past the doorkeeper at the JC, who asked him if he had an appointment and when my friend explained what the DWP had told him, again repeated the "oh no, that's not right, you have to stay on JSA" line but eventually let him in.

So hopefully the documents will get forwarded and he'll get put on ESA whilst he's waiting for his appeal but I wanted to ask about this, as I don't recall reading anywhere about needing to provide a sick note from your GP to cover the period from when the ESA was stopped. This seems problematic, as by the time you can get to see your GP it will be some time after it was stopped and I don't know if they can backdate sick notes. Some people might even be between GPs after moving or if their surgery has shut down, or just not regularly seeing a GP and just having their conditions managed by consultants.

It just seems strange that a claimant would be required to provide a sick note to prove that they're sick to get ESA, when this would normally be irrelevant for ESA purposes as it's based on functionality criteria, not what illnesses you have. Besides, the whole point of the appeal is to argue that the claimant qualified at the time of the wrong decision/assessment and thus ESA should not have been stopped, so I don't get why the claimant has to provide sick notes for the period between it being stopped and the conclusion of the appeal, when if it is successful the decision to reinstate ESA will cover the same period.

OK, thanks Gordon. I just wanted to check my friend wasn't being misled into doing something that might adversely affect him, particularly considering all the misinformation he was given at the JC, as I couldn't recall reading about the need for the Fit Note anywhere.

I guess it makes sense. He did claim JSA whilst waiting for his MR so I guess the fit note wouldn't need to be backdated anyway, as he'll only transfer from JSA to ESA Assessment rate from the date his request to do so is processed. He says he has a fit note that covers him from the relevant date anyway, so he should be OK.

I do wonder how someone who didn't claim JSA whilst waiting for the MR would fare though, as they'd need a fit note dated the day after the fit for work decision was made and they're unlikely to realise they need to see their GP urgently to get one and even if they do, may not be able to get an appointment for some time. So unless GPs are willing and legally able to backdate them, then the claimant would have no chance of obtaining ESA for the period between being found fit for work and registering their appeal.

David Jones wrote: OK, thanks Gordon. I just wanted to check my friend wasn't being misled into doing something that might adversely affect him, particularly considering all the misinformation he was given at the JC, as I couldn't recall reading about the need for the Fit Note anywhere.

I guess it makes sense. He did claim JSA whilst waiting for his MR so I guess the fit note wouldn't need to be backdated anyway, as he'll only transfer from JSA to ESA Assessment rate from the date his request to do so is processed. He says he has a fit note that covers him from the relevant date anyway, so he should be OK.

I do wonder how someone who didn't claim JSA whilst waiting for the MR would fare though, as they'd need a fit note dated the day after the fit for work decision was made and they're unlikely to realise they need to see their GP urgently to get one and even if they do, may not be able to get an appointment for some time. So unless GPs are willing and legally able to backdate them, then the claimant would have no chance of obtaining ESA for the period between being found fit for work and registering their appeal.

Hi DJ,

A Fit Note (Med 3) can be backdated, see :

"“When can I backdate a Statement of Fitness for Work ?

A Statement of Fitness for Work (Med 3) can only be issued for a backdated period when it is based on a previous assessment.

An assessment is defined as the date you either had a face-to-face consultation, a telephone consultation or considered a report from another doctor or registered healthcare professional. You can issue a Statement on or after this date, but not before.

We recognise that there are some situations where your patient may ask for medical evidence to cover a backdated period for which there has not been a previous assessment – for example, if your patient has not been appropriately issued with a Med 3 on discharge from hospital or at a previous consultation with another GP.
In these situations, you cannot issue a Med 3 for the back dated period. However, in order to be helpful to your patient you may wish to, either in the comments box of the Statement or in a separate letter, provide advice that the patient was not fit for work for an earlier period. You should ensure you have the appropriate information and evidence to justify this advice – generally this will be via a report or patient record. Employers and DWP can accept this advice as strong evidence of fitness for work for social security and Statutory Sick Pay purposes."

From : www.gov.uk/government/uploads/system/upl...-reports-q-and-a.pdf

I would always advise an ESA Claimant who has been found fit for work to obtain a fresh Fit Note from their G.P. to cover them from the date of the fit for work decision.

However, if they are to claim JSA during The MR process, they should keep hold of the fit notes until their appeal is accepted, if the process goes that far, and they wish to revert to ESA Assessment Rate.

It would be even more important for someone who has been found fit for work but is not going to claim JSA during The MR process to obtain Fit Notes from the date of the fit for work decision, as once their appeal is accepted they can present the Fit Notes which should mean that ESA Assessment rate is paid and backdated from the date of the fit for work decision.

Reverting to ESA Assessment Rate from JSA once an appeal is accepted should be a straight forward issue, see : This Topic and the links therein to other topics.

bro58

I'm afraid I'm still not entirely clear on what my friend needs to do. Say the fit note the GP provides covers him for one month and it takes a year before his appeal is heard, does he have to get a fresh fit note each month and send it in to keep receiving ESA Assessment rate whilst he's waiting?

David Jones wrote: I'm afraid I'm still not entirely clear on what my friend needs to do. Say the fit note the GP provides covers him for one month and it takes a year before his appeal is heard, does he have to get a fresh fit note each month and send it in to keep receiving ESA Assessment rate whilst he's waiting?

Hi DJ,

He needs to obtain ongoing fit notes to cover him from the date of the fit for work decision until the appeals process has come to an end.

Even if he is eventually successful as the result of a Tribunal Hearing, he should continue to submit fit notes until informed to the contrary by The DWP.

His G.P. should be able to issue fit notes for no more than 3 months each for the first two fit notes, and then for 6 months or more for the third and any subsequent fit notes.

Have a read through This Topic, and the links to other topics therein.

bro58