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ESA going to appeal now told to make new claim

  • We_All_Matter
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11 years 11 months ago - 11 years 11 months ago #104636 by We_All_Matter
ESA going to appeal now told to make new claim was created by We_All_Matter
:unsure:

Have been in WRAG since 2008 but pymt stopped in May last year due to new 365 day ESA conts rule since then I have been getting NI credits only. I requested reconsideration/appeal due to my worsening condition. I had major surgery in Feb 20I13 and am still recovering.
Decision finally made against me last week so case is now going to tribunal.

Today got call from DWP advising me to make a new claim to ESA so they can have a clearer idea of how my condition has worsened - despite having written to them & submitting letters from consultant etc..

I am now very confused – why do I need to make a new claim to ESA when I have confirmation that I am in the WRAG but getting NI credits only. Last week I completed another ESA50 for this years ATOS assessment so the DWP are clearly aware that I have an active claim. If I put in a fresh claim will it confuse things at this stage when my case is going to tribunal?

Also the woman from DWP said that if the appeal goes in my favour I only get ESA backdated 3 months yet I submitted my request for reconsideration/appeal in Sept 2013.

Any advice greatly appreciated
Last edit: 11 years 11 months ago by . Reason: Tick.

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11 years 11 months ago #104639 by slugsta
Replied by slugsta on topic ESA going to appeal now told to make new claim
As you say, you already have an open claim for ESA and have also recently submitted a new ESA50 - so I really don't know what the DWP are talking about!

Concerning backpay if the tribunal decide in your favour, you should get backpay from the date of the decision against which you are appealing.

One of the other mods might be able to throw more light on the situation.
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  • We_All_Matter
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11 years 11 months ago - 11 years 11 months ago #104646 by We_All_Matter
Replied by We_All_Matter on topic ESA going to appeal now told to make new claim
I did query why I needed to make new ESA claim when I have had an on-going claim since 2008. She did not say it was for ESA (IS) which I wouldn't be entitled to as my husband works over 24hrs/wk, just that it was to have a more recent claim on record with up to date details of my condition.

I have not heard of this before - is it a new delaying tactic as they have such a backlog of appeals?

Can you point me in the right direction as to where it states in the ESA legislation that pymt will be backdated to the date the of the original decision. There seems to be a complete lack of information of the deadlines the DWP/ATOS have to meet in this whole process (or do they not have deadlines?).

many thanks
Last edit: 11 years 11 months ago by Gordon.

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11 years 11 months ago #104653 by Gordon
Replied by Gordon on topic ESA going to appeal now told to make new claim

We_All_Matter wrote: I did query why I needed to make new ESA claim when I have had an on-going claim since 2008. She did not say it was for ESA (IS) which I wouldn't be entitled to as my husband works over 24hrs/wk, just that it was to have a more recent claim on record with up to date details of my condition.

I have not heard of this before - is it a new delaying tactic as they have such a backlog of appeals?

Can you point me in the right direction as to where it states in the ESA legislation that pymt will be backdated to the date the of the original decision. There seems to be a complete lack of information of the deadlines the DWP/ATOS have to meet in this whole process (or do they not have deadlines?).

many thanks


I suspect that this may be the result of a confusion over terms by the DWP.

You say that you asked for a "reconsideration/appeal" due to a worsened condition. This was done in September 2012.

The first question is whether you were still inside the maximum 13 months to make a late appeal, if not then then the DWP should have reject the request.

If you were then the DWP and any Tribunal can only refer to your condition as it was at the time of the previous Decision on your claim, any deterioration since then must be ignored. If this appeal was successful then your payments would be backdated to the date of the original Decision.

As your condition has deteriorated you should have requested a Supersession, and it is this that I believe the DWP are suggesting that you do, although to suggest this is a new claim is inaccurate as, as you have rightly pointed out, you already have an existing claim. A Supersession will normally results in payment from the date of the Decision and would not cover any lost payments resulting from the 365 day rule.

The three month period suggested by the DWP results from a claimants right to backdate a new claim for ESA by up to three months.

You need to contact the DWP and explain that you already have an active claim for ESA but you wish to be re-assessed due to a deterioration in your claim as you now believe you meet the criteria for the Support Group.

Gordon
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  • We_All_Matter
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11 years 11 months ago - 11 years 11 months ago #104674 by We_All_Matter
Replied by We_All_Matter on topic ESA going to appeal now told to make new claim
My last ATOS WCA was June 2012 following submission of ESA50 in Jan 2012 (though the ESA50 was ’Not Available’/Lost on the day of the WCA). The decision wasn’t made until end August 2012 by which time my condition had greatly worsened. I asked for a reconsideration which I finally got last week (decision upheld) so it now goes to appeal.

If I ask for a Supersession and do not need to complete a new claim form how do I get them to re-assess me and should I allow the appeal to tribunal to proceed?

This has been going on for so long I am very worried that if I withdraw the appeal I forfeit getting any back payments should the decision go in my favour as well as having to start the whole process again.

your help is greatly appreciated
Last edit: 11 years 11 months ago by slugsta.

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11 years 11 months ago #104680 by slugsta
Replied by slugsta on topic ESA going to appeal now told to make new claim
Asking for a supersession would probably result in another ESA50 to be completed and, possibly, another face-to-face assessment. This is not the same as starting a new claim.

The tribunal will only look at your condition as it was when the first decision was made, they cannot consider any subsequent worstening of your condition. In effect, they are 'remaking' that decision, that is why backpay is owing from that date.

If you were to lapse your appeal you would not be entitled to any backpay as the original decision would stand.

It is possible to have a supersession running at the same time as an appeal. You should be aware that the tribunal decision could only run up to the date of the supersession decision so if, for example, the tribunal put you into the support group you would go back to WRAg (or even 'fit for work') if the supersession came up with this decision. The supersession decision is also appealable.
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