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In WRAG despite 0 points from Atos 7 years 6 months ago #98374
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I've been claiming income related ESA since the end of 2010 and at the time of applying, I had an Atos medical assessment which resulted in me being admitted into the WRAG. At the end of 2011, I was sent another ESA50 which I submitted but I didn't hear anything from Atos or the DWP until I was called for a work related interview at my local Jobcentre a couple of months later, where I was informed that I had been readmitted into the WRAG for a further 12 months without another medical. However, I never received a letter from the DWP confirming this decision, so I only found out by asking the JCP advisor.
Fast forward to the end of 2012 and I received another ESA50 which I duly filled in which showed a deterioration in both mental and physical health and at this point I strongly believe that the deterioration is sufficient that I now belong in the Support Group. This time I was sent for another Atos medical on 9th January. So far I've not received anything in writing about the decision, but last Friday I phoned the DWP to ask what the status was. The advisor on the phone told me that a decision had been made on 22nd January to readmit me once again into WRAG for another 12 months. During this phone call I requested a copy of my ESA85.
Yesterday the ESA85 came. To my horror, it is full of inaccurate information and assumptions, but worst of all, all of the activity outcomes read "None of the above apply", and there are no exceptional circumstances that apply and it states that a return to work can be expected within 3 months because the available evidence suggests significant functional impairment is unlikely. So, I can deduce that I have scored zero points in the medical.
As such, I began to think that I was told the wrong information on the phone last Friday and perhaps the 22nd January date was actually when I was readmitted to WRAG in 2012 (i.e. it was 22nd January 2012 when they last made the decision and no decision has yet been made for the latest medical). Today I called them again and the advisor once again explicitly confirmed that I had been readmitted into the WRAG for a further 12 months from 16th January 2013 (despite the previous phone call stating the 22nd - I queried this and he said the decision was made on the 16th but the notes were added into the system on the 22nd). However, I've still not received an official decision letter from the DWP, but having said that, I never did last year either without the medical. He said one will arrive "eventually".
Now, I can't understand how I'm still in the WRAG after scoring zero points at the Atos assessment? Could it be that the answers in my ESA50 questionnaire or any hypothetical ESA113 (I don't know if they sent one to my GP or not) have taken priority over the ESA85 findings? I thought the decision maker would just rubber stamp the ESA85's conclusions.
Would the fact that I recently had an application for DLA granted for 24 months have any impact on it (i.e. because the DLA decision maker has surmised that I will not be 'okay' for at least 24 months, contrary to the Atos nurse's opinion that I'll be fine within 3 months)? I do understand that the criteria for DLA is different to that of ESA, but I'm just trying to find an explanation regarding why the ESA85 report has been disregarded by the decision maker.
I mentioned the unfavourable ESA85 to the DWP advisor on the phone today and he also thought in such a scenario I'd lose my ESA entitlement and couldn't provide an explanation for why I've been readmitted, but confirmed payments are still live and said that I've received 2 cold weather payments this last fortnight (paid into my bank account on the 22nd and 29th of this month) and that I would not have received them if they had found me fit for work as their decision had been made on the 16th.
However, this makes me worry about appealing to be placed in the Support Group. I'm well aware that reconsiderations/appeals can result in the award being taken away entirely, so would the fact that I have received zero points in the Atos medical assessment make this more likely? Or would the fact that the DWP have still supposedly placed me in the WRAG for a further 12 months mean that they already believe the ESA85 is unsound?
I've already drafted a covering letter for an appeal where I've listed the 5 Support Group descriptors that I feel apply to me as well as the 20 (!) inaccurate statements of "fact" presented in the ESA85 which were false assumptions. I also have a letter from my GP which I also sent with my ESA50 questionnaire, along with a new Med 3 fit note to reiterate the fact that I'm not fit for any work based activity and an annotated leaflet from my medication which shows the side effects that I experience. I just don't know whether or not I should actually post it because of any elevated risk of losing the award because I received zero points from the Atos medical assessment.
I do strongly believe that I belong in the Support Group though. Has anyone else experienced a situation where they have been admitted into the WRAG despite "failing" the Atos medical? Is it common? I wish I had requested a copy of my ESA85 from 2010, but I suppose it's too late now. I saw in another document on this website that the DWP only keep such material for 14 months.
Lastly, if I do choose to appeal, the GL24 form states that I need to mention the date from the top of the decision letter. I've not received a decision letter yet. Should I wait for one to arrive, or cite the 16th January date I was given on the phone? I'm worried that the letter won't ever arrive, just as it didn't last year, and then the window of opportunity to appeal will be closed.
Last edit: by bro58.
In WRAG despite 0 points from Atos 7 years 6 months ago #98378
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I note that this is your first post on the forum, if you are a new member, : Welcome to Benefits and Work
Can you please try and keep any future posts to a shorter format, as a long post such as this can make it difficult to sift out the actual query.
It is possible to have a ESA85 Medical Report, that "Recommends" a fit for work decision, as that is what it does, makes recommendations.
Although it is not a common occurance, the DWP Decision Maker, can make a decision that does not agree with these recommendations.
The DM may have chosen to use other medical evidence, which could have included your DLA assessment, it's not possible for me to give a definitive answer on this.
You may wish to make a formal request for all documentation used in your most recent ESA assessment, using a Subject Access Request, (SAR) and could even try requesting documents from previous ESA and DLA assessments. (as you rightly state they may have been destroyed, but it may be worth a try).
You can download and fill in a SAR from here : www.dwp.gov.uk/docs/request-for-personal-information.rtf
On this webpage :
Here is a list of potentially available : ESA Forms
There should definately be an LT54.
Ther may also be an : ESA 113 Questionnaire , if one was sent to your G.P.
and an : ESA72 Form
See also : ESA medical – what forms to ask for?
DLA Medical – What forms to ask for?
You could list any ESA/DLA Documents that you feel may be available, and then to cover all bases, request any other documentation that has been used.
With regards to not receiving a Decision Notice informing you of your ESA WRAG award,
As a decision to award ESA in the WRAG (LCW) or ESA in the Support Group (LCWRA), or indeed a decision to find the claimant “fit for work” carries a right to appeal under s12 of the SSA 1998, see :
Such decisions which carry a right to appeal under s12 shall be notified to the claimant in writing in accordance with Reg 28 of the Decisions and Appeals Regulations 1999. See :
Therefore you should be notified In Writing.
As you have stated, the GL24 should be received by the DWP no more than one month from the date of the Decision Notice. (which you don't have)
You could submit an appeal now using GL24, (downloadable from the link on this page : How to submit an appeal ) stating that you have not received a Decision Notice, or you could push using the Regulations above for a written Decision Notice.
If you are to appeal to be placed into The SG, you should be aware that there is some risk involved :
Is there any risk to challenging a decision?
See also :
Qualifying for the Support Group from our : ESA FAQ’s
ESA Claims Guides
And our : Appeals FAQ’s
Where to get advice?
Sending Documents to the DWP or ATOS
Please repost on this topic thread if you have further queries.
You may wish to "Favourite" this topic for future ease of access.
Last edit: by bro58.