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IB to ESA, nil points and appealing

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10 years 11 months ago - 10 years 11 months ago #105301 by dizzy247
Replied by dizzy247 on topic IB to ESA, nil points and appealing
Following my request for esa to be paid at the assessment rate whilst waiting for the appeal, I have received a letter advising me of the amount I will be getting etc but it also states that I may be called by JCP for a WFI. Does this usually happen and if so, do I have to attend in order to carry on receiving benefit?

Many thanks.
Last edit: 10 years 11 months ago by Gordon.

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10 years 11 months ago - 10 years 11 months ago #105304 by Gordon
Replied by Gordon on topic IB to ESA, nil points and appealing

dizzy247 wrote: Following my request for esa to be paid at the assessment rate whilst waiting for the appeal, I have received a letter advising me of the amount I will be getting etc but it also states that I may be called by JCP for a WFI. Does this usually happen and if so, do I have to attend in order to carry on receiving benefit?

Many thanks.


I think it likely that this is a standard letter. As you are appealing a Fit for Work Decision you are not required to attend WFI's or participate in Work Related Activity.

Gordon

Nothing on this board constitutes legal advice - always consult a professional about specific problems
Last edit: 10 years 11 months ago by Gordon.
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10 years 11 months ago - 10 years 11 months ago #105521 by dizzy247
Replied by dizzy247 on topic IB to ESA, nil points and appealing
Just an update and a few more questions.
Although I previously asked about reg 35 I did not mention this to my GP or in my appeal letter, nor did I send anymore evidence.

I have now received a letter from DWP stating that on reconsideration I now find on the balance of probability, that there is a causal link between Mrs dizzy247 being found capable of work and an ensuing substantial risk to her physical health.
I thereby consider that Reg 29 of esa regs 2008 applies to Mrs dizzy247 and she is treated as having limited capability for work.

Having considered the available evidence I have also determined that by reason of her physical condition none of the descriptors set out in schedule 3 of esa regs apply and she does not have limited for work related activity.

I still feel that I should be in the support group and I'm considering submitting a further appeal.
I would like any advice on what to do next, particularly on which points to focus on now.
Surely if there is a risk to my physical health this should apply for both groups?

Thanks
Last edit: 10 years 11 months ago by Gordon.

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10 years 11 months ago #105529 by Gordon
Replied by Gordon on topic IB to ESA, nil points and appealing

dizzy247 wrote: Just an update and a few more questions.
Although I previously asked about reg 35 I did not mention this to my GP or in my appeal letter, nor did I send anymore evidence.

I have now received a letter from DWP stating that on reconsideration I now find on the balance of probability, that there is a causal link between Mrs dizzy247 being found capable of work and an ensuing substantial risk to her physical health.
I thereby consider that Reg 29 of esa regs 2008 applies to Mrs dizzy247 and she is treated as having limited capability for work.

Having considered the available evidence I have also determined that by reason of her physical condition none of the descriptors set out in schedule 3 of esa regs apply and she does not have limited for work related activity.

I still feel that I should be in the support group and I'm considering submitting a further appeal.
I would like any advice on what to do next, particularly on which points to focus on now.
Surely if there is a risk to my physical health this should apply for both groups?

Thanks


Congratulations on the revision, now that you are in the WRAG you should receive increased payments.

Regulation 29 is specifically in respect to a claimant working, whereas Regulation 35 applies to Work Related Activity, so just because you have met the criteria for the former does not mean that you will meet the latter.

It is up to you whether you should appeal or not but you need to be aware that there is a risk associated with you doing so. Whilst in your favour, this decision confirms the previous one is as much that you do not meet any of the WRAG descriptors, whilst it is not 100% the case, it would imply that an appeal would be based on you meeting Reg. 35 and none of the Support Group descriptors.

An appeal will result in another Reconsideration, the DWP Decision Maker and the Appeal panel will look at your claim in full, and they are both entitled to remove your new WRAG status, so you should think carefully before progressing this and consider how strong your case is!

With regard an appeal

How long do I have to appeal?

How to submit an appeal

ESA medical – what forms to ask for?

Qualifying for the Support Group

Disability Rights UK Factsheet - Appeals and reconsiderations

Preparing for a Tribunal

MOJ Video of ESA Appeals Process and Tribunal

12 Month Limit for ESA(CB)

Do I have to attend WFIs while I appeal?

Gordon

Nothing on this board constitutes legal advice - always consult a professional about specific problems

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10 years 11 months ago #105536 by dizzy247
Replied by dizzy247 on topic IB to ESA, nil points and appealing
Thank you Gordon

Really don't know what to do for the best now.
I really feel that I should be in the support group and should have at least scored some points on mobility, but obviously don't want to risk losing it altogether, although it's cont based so will only get it for a year anyway.

Many thanks for making me aware of what can happen.

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10 years 10 months ago - 10 years 10 months ago #107856 by dizzy247
Replied by dizzy247 on topic IB to ESA, nil points and appealing
I would really like your views/advice on the following. It's complicated but I will try to explain briefly.

I went ahead with the appeal.
This time I didn't receive a letter of acknowledgment but have just received my appeal bundle.
The letter with it reads as if I am appealing the original fit for work decision and there are no copies of my esa50, supporting letters or first appeal request, in fact just copies of the medical assessment, the score sheet and my second appeal letter, although there is a copy of the reconsideration which states I was put in WRAG.
The appeal tribunal have been asked if they agree with the decision that I do not have limited capability for work.

I immediately rang DWP because I thought on the 2nd reconsideration I had lost my WRAG status however the first person I spoke to said that there was nothing on my file to say that was the case.
I got a call back from the appeals dept and EVENTUALLY managed to explain the problems but am not fully convinced that they have fully understood. According to them I am in WRAG and that is what I am appealing. I was told that they would copy the rest of the missing info and forward it to me.

Today I have written a letter explaining everything from the beginning and copied the letters from them highlighting the incorrect info.
I have also politely asked for the appeal to be looked at again because of the mistakes and asked for a full copy of everything to be sent to me and the appeal tribunal. I have also enclosed further evidence to support my claim.

Really sorry for the long post but would appreciate any advice re anything I have missed or need to do.
many thanks
Last edit: 10 years 10 months ago by Gordon.

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