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What do we next please?
- shinds
- Topic Author
12 years 2 weeks ago - 12 years 2 weeks ago #105152 by shinds
What do we next please? was created by shinds
Hi,
I really need some advice please.
My mum was originally on IB and about a year ago after her ATOS assessment she was placed on ESA - (Work Related Activity Group) as she only got 9 points.
So we appealed and then went to Tribunal.
The first tribunal - we were in the room for 5 mins, we were told that my mum should have an interpreter and also they wanted her medical records from the GP. So we agreed. So it was basically 'adjourned'
So next Tribunal (20th May) - My dad went along with my mum (there was no interpreter)
They basically awarded my mum the 15 points - But they still left her in the 'Work Activity Related Group'
The Decision Notice says the following:
1. The appeal is allowed
2. The decision made on 26/04/2012 is set aside
3. Mrs XXXXX is entitled to ESA with the work-realted activity component
4. This is because in applying the Work Capability Assessment 15 points were scored from the activities and descriptors in Schedule 2 of the ESA Regulations 2008 made up as follows:
1(d) - 6 points
2(b) - 9 points
5. No Schedule 3 descriptor is applied
6. The Tribunal recommends that the Department does not reassess the appellant within the monts from the date of the hearing
The Tribunal reached a different conclusion, having regard to the physical factors, on substantially the same facts
...So now - What do we do please? The DWP called to say that her ESA will stop as she's reached 365 days - However they will pay the arrears for thr time she was on the basic rate of ESA.
My mum has arthritis and there is no way that she is in a fit state to ever go back to work.
So please can you advise, what we should do next?
Does she qualify for the 'Support Group'.?
Should we make a fresh application to the DWP for ESA (in the support group)
or ...should we write back to the Tribunal service and ask for them to re-consider her case?
Very much appreciate any help or advice
Thanks
I really need some advice please.
My mum was originally on IB and about a year ago after her ATOS assessment she was placed on ESA - (Work Related Activity Group) as she only got 9 points.
So we appealed and then went to Tribunal.
The first tribunal - we were in the room for 5 mins, we were told that my mum should have an interpreter and also they wanted her medical records from the GP. So we agreed. So it was basically 'adjourned'
So next Tribunal (20th May) - My dad went along with my mum (there was no interpreter)
They basically awarded my mum the 15 points - But they still left her in the 'Work Activity Related Group'
The Decision Notice says the following:
1. The appeal is allowed
2. The decision made on 26/04/2012 is set aside
3. Mrs XXXXX is entitled to ESA with the work-realted activity component
4. This is because in applying the Work Capability Assessment 15 points were scored from the activities and descriptors in Schedule 2 of the ESA Regulations 2008 made up as follows:
1(d) - 6 points
2(b) - 9 points
5. No Schedule 3 descriptor is applied
6. The Tribunal recommends that the Department does not reassess the appellant within the monts from the date of the hearing
The Tribunal reached a different conclusion, having regard to the physical factors, on substantially the same facts
...So now - What do we do please? The DWP called to say that her ESA will stop as she's reached 365 days - However they will pay the arrears for thr time she was on the basic rate of ESA.
My mum has arthritis and there is no way that she is in a fit state to ever go back to work.
So please can you advise, what we should do next?
Does she qualify for the 'Support Group'.?
Should we make a fresh application to the DWP for ESA (in the support group)
or ...should we write back to the Tribunal service and ask for them to re-consider her case?
Very much appreciate any help or advice
Thanks
Last edit: 12 years 2 weeks ago by Gordon.
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- Gordon
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12 years 2 weeks ago #105156 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic What do we next please?
shinds
Taking your post as is I need to correct you
If your mother only scored 9 points on her original assessment then she was actually found Fit for Work and was not placed in the WRAG!
By scoring 15 points at her appeal, the Tribunal placed your mother in the WRAG as they deemed she has Limited Capability for Work, so there should be a back payment of the WRAG component from the date of the original Decision.
The appeal Decision can only be challenged if she can show that there has been an Error of Law, not because she disagrees with the result.
What is an Error of Law?
A first stage to this is Requesting a Written Statement of Reasons
Tribunals – Requesting a Statement of Reasons
Appealing to the Upper Tribunal is a protracted affair and she will not receive payment while doing so, she will also need to seek advice from an advisor with experience in this area.
As she was on IB she will have been transferred to Contribution based ESA, however, the payments are subject to a time limit of 365 days if a claimant remains in the WRAG or on the Assessment rate, which she would have received while appealing. After the 365 days she may be eligible for Income Related ESA, which takes into account family income, assets and savings and any hours that a partner works.
If she is not eligible for ESA(IR) then she will not be able to make a new claim for ESA as she will neither meet the means test nor the Contribution requirements, however, while she continues to have Limited Capability for Work, if at any time, now or in the future, her condition deteriorates to the point where she meets the criteria for the Support Group she can ask to be re-assessed.
Qualifying for the Support Group
However, the burden of proof will lie with her and she will need to provide significant medical evidence to support her request.
Has she looked at whether she would meet the criteria for DLA?
If you have any questions or need clarification on anything I have written, please reply to this post.
Gordon
Taking your post as is I need to correct you
If your mother only scored 9 points on her original assessment then she was actually found Fit for Work and was not placed in the WRAG!
By scoring 15 points at her appeal, the Tribunal placed your mother in the WRAG as they deemed she has Limited Capability for Work, so there should be a back payment of the WRAG component from the date of the original Decision.
The appeal Decision can only be challenged if she can show that there has been an Error of Law, not because she disagrees with the result.
What is an Error of Law?
A first stage to this is Requesting a Written Statement of Reasons
Tribunals – Requesting a Statement of Reasons
Appealing to the Upper Tribunal is a protracted affair and she will not receive payment while doing so, she will also need to seek advice from an advisor with experience in this area.
As she was on IB she will have been transferred to Contribution based ESA, however, the payments are subject to a time limit of 365 days if a claimant remains in the WRAG or on the Assessment rate, which she would have received while appealing. After the 365 days she may be eligible for Income Related ESA, which takes into account family income, assets and savings and any hours that a partner works.
If she is not eligible for ESA(IR) then she will not be able to make a new claim for ESA as she will neither meet the means test nor the Contribution requirements, however, while she continues to have Limited Capability for Work, if at any time, now or in the future, her condition deteriorates to the point where she meets the criteria for the Support Group she can ask to be re-assessed.
Qualifying for the Support Group
However, the burden of proof will lie with her and she will need to provide significant medical evidence to support her request.
Has she looked at whether she would meet the criteria for DLA?
If you have any questions or need clarification on anything I have written, please reply to this post.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
The following user(s) said Thank You: shinds
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- bro58
12 years 2 weeks ago - 12 years 2 weeks ago #105161 by bro58
Replied by bro58 on topic What do we next please?
Hi s,
The 15 points awarded were for the following Schedule 2. WRAG (LCW) Descriptors :
1.
(d) Cannot either:
(i)mobilise more than 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;
or
(ii)repeatedly mobilise 200 metres within a reasonable timescale because of significant discomfort or exhaustion.
6 Points.
&
2.
(b) Cannot, for the majority of the time, remain at a work station, either:
(i)standing unassisted by another person (even if free to move around);
or
(ii)sitting (even in an adjustable chair)
for more than 30 minutes, before needing to move away in order to avoid significant discomfort or exhaustion.
9 Points
From :
www.legislation.gov.uk/uksi/2011/228/schedule/1/made?view=plain
They are then stating that none of The Schedule 3 SG (LCWRA) Descriptors applied to your mother. :
www.legislation.gov.uk/uksi/2011/228/schedule/2/made?view=plain
Hence, she was placed into The WRAG and not The SG.
bro58
Mod Comment to viewing members :
The WRAG and SG Descriptors above are pertinent to the "Old" ESA50 03/11, which were the applicable ones in the case of the OP.
The Descriptors have been amended in line with the "New" ESA50 01/2013, after 28/01/13.
The 15 points awarded were for the following Schedule 2. WRAG (LCW) Descriptors :
1.
(d) Cannot either:
(i)mobilise more than 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;
or
(ii)repeatedly mobilise 200 metres within a reasonable timescale because of significant discomfort or exhaustion.
6 Points.
&
2.
(b) Cannot, for the majority of the time, remain at a work station, either:
(i)standing unassisted by another person (even if free to move around);
or
(ii)sitting (even in an adjustable chair)
for more than 30 minutes, before needing to move away in order to avoid significant discomfort or exhaustion.
9 Points
From :
www.legislation.gov.uk/uksi/2011/228/schedule/1/made?view=plain
They are then stating that none of The Schedule 3 SG (LCWRA) Descriptors applied to your mother. :
www.legislation.gov.uk/uksi/2011/228/schedule/2/made?view=plain
Hence, she was placed into The WRAG and not The SG.
bro58
Mod Comment to viewing members :
The WRAG and SG Descriptors above are pertinent to the "Old" ESA50 03/11, which were the applicable ones in the case of the OP.
The Descriptors have been amended in line with the "New" ESA50 01/2013, after 28/01/13.
Last edit: 12 years 2 weeks ago by bro58.
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- shinds
- Topic Author
12 years 2 weeks ago - 12 years 2 weeks ago #105163 by shinds
Replied by shinds on topic What do we next please?
Many thanks for the quick replies guys.
Well she definitely can't walk 200 meters.
...is this good enough to back to the tribunal.?
Also she did not have an interpreter. Would this count as an 'error of law'.?
So what I really need your help on is ...Should we be going back to the Tribunal requesting them to review their decision about placing her in the WRAG.?
Or
Would we be better off making a new claim.? As I do feel she falls into the Support Group.?
Thanks
Well she definitely can't walk 200 meters.
...is this good enough to back to the tribunal.?
Also she did not have an interpreter. Would this count as an 'error of law'.?
So what I really need your help on is ...Should we be going back to the Tribunal requesting them to review their decision about placing her in the WRAG.?
Or
Would we be better off making a new claim.? As I do feel she falls into the Support Group.?
Thanks
Last edit: 12 years 2 weeks ago by bro58.
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- bro58
12 years 2 weeks ago - 12 years 2 weeks ago #105167 by bro58
Hi s,
This comment from your post :
Tells me that you do not fully understand the qualifying criteria.
Activity 1, is "Mobilising" , and includes the use of a manual wheelchair unaided, as well as walking.
"1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used."
You do not have to make a fresh claim for ESA, you need to request a review/supersession by contacting the DWP.
Your Mum will then have to fill in another ESA50 and may have to attend a face to face assessment.
Unless your Mum is entitled to IR ESA, or can gain entry to The SG as a result of a review/reassessment, or can gain the necessary NI Contributions from employment, I am afraid that she will receive no further payment of ESA. She will continue to receive NI Credits which will go towards her State Pension.
See : 12 Month Limit for ESA(CB)
She must keep a continuous assessment of WRAG (LCW) for her to be able to have payments reinstated by being placed into The SG at a review.
If she closes her ESA claim for more than 12 weeks, this cannot happen, that will be it, even if she makes a fresh claim after the 12 weeks.
We cannot advise on whether you have a valid reason to make an appeal to The Upper Tier on an error in law.
As Gordon has stated, your first step would be to request the written SofR from The Tribunal.
You then need to gain professional advice :
Where to get advice?
Or you could put Welfare Rights/Advice into your search engine with your Town/Postcode.
bro58
Replied by bro58 on topic What do we next please?
shinds wrote: Many thanks for the quick replies guys.
Well she definitely can't walk 200 meters.
...is this good enough to back to the tribunal.?
Also she did not have an interpreter. Would this count as an 'error of law'.?
So what I really need your help on is ...Should we be going back to the Tribunal requesting them to review their decision about placing her in the WRAG.?
Or
Would we be better off making a new claim.? As I do feel she falls into the Support Group.?
Thanks
Hi s,
This comment from your post :
"Well she definitely can't walk 200 meters."
Tells me that you do not fully understand the qualifying criteria.
Activity 1, is "Mobilising" , and includes the use of a manual wheelchair unaided, as well as walking.
"1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used."
You do not have to make a fresh claim for ESA, you need to request a review/supersession by contacting the DWP.
Your Mum will then have to fill in another ESA50 and may have to attend a face to face assessment.
Unless your Mum is entitled to IR ESA, or can gain entry to The SG as a result of a review/reassessment, or can gain the necessary NI Contributions from employment, I am afraid that she will receive no further payment of ESA. She will continue to receive NI Credits which will go towards her State Pension.
See : 12 Month Limit for ESA(CB)
She must keep a continuous assessment of WRAG (LCW) for her to be able to have payments reinstated by being placed into The SG at a review.
If she closes her ESA claim for more than 12 weeks, this cannot happen, that will be it, even if she makes a fresh claim after the 12 weeks.
We cannot advise on whether you have a valid reason to make an appeal to The Upper Tier on an error in law.
As Gordon has stated, your first step would be to request the written SofR from The Tribunal.
You then need to gain professional advice :
Where to get advice?
Or you could put Welfare Rights/Advice into your search engine with your Town/Postcode.
bro58
Last edit: 12 years 2 weeks ago by bro58.
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- bro58
12 years 2 weeks ago - 12 years 2 weeks ago #105169 by bro58
Replied by bro58 on topic What do we next please?
Here is a link to further information on appealing to The UT :
Appealing to The Upper Tier, DR UK Factsheet
If you going to consider requesting that a review/supersession should be carried out by The DWP, as a separate issue, my best advice would be to read through our :
ESA Claims Guides
&
ESA FAQ’s
You can then make an informed decision.
bro58
Appealing to The Upper Tier, DR UK Factsheet
If you going to consider requesting that a review/supersession should be carried out by The DWP, as a separate issue, my best advice would be to read through our :
ESA Claims Guides
&
ESA FAQ’s
You can then make an informed decision.
bro58
Last edit: 12 years 2 weeks ago by bro58.
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