ESA WRAG. Should I appeal?

I would be grateful for any advice.

I have CFS/ME. I lost my job because of it back in 2005 and have been unable to work ever since. I receive a pension income from my old employer and so only receive NI credits from the DWP.

I completed my ESA50 back in March and received a decision letter yesterday. I was not called for an ATOS assessment.

The letter tells me I have been placed in the work-related activity group. It also says that they are now going to start paying me some money every week to which I am obviously not entitled, but that's another battle!

I have so many questions.

- If I don't appeal and remain in WRAG, what happens if I am told to attend something and I am unable to due to my illness?

- Do my NI credits stop after a year, or do they continue as long as I am on ESA?

- There was no information in my letter about how the decision was reached so how vague can I be on the appeal form as to why I think their decision is wrong? My ESA50 form was pretty much based on the exceptional circumstance rule:

"A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 30(1) is to be treated as having limited capability for work-related activity if—
(b)by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity."

Basically, because of my illness I have to carefully pace and control what I do in a day otherwise I end up bed-ridden. If I were forced to attend WRA it would make me more ill. Should I put all that on the appeal form?

Obviously I don't want to appeal as the stress will make me worse, but I cannot be in the situation where I have to attend activities at the DWP's say so. Since I am unable to even shower and dress every day I fail to see how the DWP will help me back to work.

Thank you for taking the time to read this.
Sharon

Hi,

Welcome to Benefits and Work

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" I receive a pension income from my old employer and so only receive NI credits from the DWP."

I can't really comment on whether you are entitled to payment of ESA rather than NI Credits only, as that is beyond the remit of the forum.

If you have any doubts regarding this, you should seek face to face advice, where they will have access to all your personal details. :

Where to get advice?

I will try to help with your other queries.

"I completed my ESA50 back in March and received a decision letter yesterday. I was not called for an ATOS assessment."

Yes, this is quite common, ATOS can assess you on paper alone without a "Medical" if they feel that you have provided enough evidence with your ESA50.

They cannot find you fit for work though, without first having a "Medical".

"- If I don't appeal and remain in WRAG, what happens if I am told to attend something and I am unable to due to my illness?"

If you are being paid the WRA Component of ESA, then you would have to comply with WFI's and WRA, under threat of sanction.

If the above was the case, they have to take into account your limitations, and make any reasonable adjustments that may be required.

If you are in receipt of NI Credits only in The WRAG, then you do not have to comply with WFI's and WRA.

See :

Work Focused Interviews

The Work Programme

Changes to ESA Sanctions

Therefore, with respect to the above, you need to acertain whether you will be in receipt of The WRA Component of ESA, or NI Credits only.

" Do my NI credits stop after a year, or do they continue as long as I am on ESA?2

Yes, NI Credits would continue for as long as you continue to comply with any further ESA WCA's and remain assessed as in The WRAG or SG.

These NI Credits only go towards your State Pension.

The only way that you will find out how and why you were placed into The WRAG, would be to request your ESA85A Medical Report, although they can be quite vague, so you may also wish to ask the particular question.

ESA medical – what forms to ask for?

SAR Form Download

From this page :

DWP Data Protection Policy

You can request The ESA85A over the phone, by ringing The DWP, but we recommend you back this up in writing.

With respect to your other queries, may I suggest that you read through our ESA Claim Guides.

As your ESA50 was issued in March, you would have to check which ESA50 it was, the "Old" ESA50 03/11, or the "New" ESA50 01/13.

Then you should read through the appropriate guides on this page:

ESA Claims Guides

There is also an ESA Appeals Guide on the same page.

See also : Qualifying for the Support Group

From our :

ESA FAQ’s

If you do wish to appeal, you only have one month to do so from the date of the decision notice letter. This can be done on the GL24 form, which can be downloaded from the link on this page :

How to submit an appeal

You should also take the time to read through all our :

Appeals FAQ’s

You might also find our : IB, IS, SDA, Migration to ESA FAQ’s , informative.

Please reply to this topic if you have any further queries. You can Bookmark/Favourite it, for future ease of access.

bro58

Hi bro58 and thank you for your reply.

I‘m sorry. I didn’t mean to give the impression that I was asking whether I’m entitled to ESA payments. I know I’m not. I just have to convince the DWP that their calculations are wrong which I know will not be straightforward.

Please bear with me. Why do you think I don’t have to comply with their requests if I only receive NI credits? According to the person I spoke to the other day I HAVE to attend or else send a letter explaining why not which will then go to a decision maker. I don’t want to have to be faced with that every time. Is it really down to the fact that since they can only apply sanctions to an ESA payment they can’t ‘do’ anything to me for not complying as I won’t be receiving any money to start with?

Also, very specifically, should I mention on the initial appeal document that I feel the exceptional circumstance rule applies to me? And I'm not sure whether it is rule 35 or rule 31 or how I quote it? I had the 'new' ESA50 form if it makes any difference.

Thank you.

Skewedhalo wrote: Hi bro58 and thank you for your reply.

I‘m sorry. I didn’t mean to give the impression that I was asking whether I’m entitled to ESA payments. I know I’m not. I just have to convince the DWP that their calculations are wrong which I know will not be straightforward.

Please bear with me. Why do you think I don’t have to comply with their requests if I only receive NI credits? According to the person I spoke to the other day I HAVE to attend or else send a letter explaining why not which will then go to a decision maker. I don’t want to have to be faced with that every time. Is it really down to the fact that since they can only apply sanctions to an ESA payment they can’t ‘do’ anything to me for not complying as I won’t be receiving any money to start with?

Also, very specifically, should I mention on the initial appeal document that I feel the exceptional circumstance rule applies to me? And I'm not sure whether it is rule 35 or rule 31 or how I quote it? I had the 'new' ESA50 form if it makes any difference.

Thank you.

Hi S,

"Please bear with me. Why do you think I don’t have to comply with their requests if I only receive NI credits? According to the person I spoke to the other day I HAVE to attend or else send a letter explaining why not which will then go to a decision maker. I don’t want to have to be faced with that every time. Is it really down to the fact that since they can only apply sanctions to an ESA payment they can’t ‘do’ anything to me for not complying as I won’t be receiving any money to start with?"

As you are not entitled to payment of ESA, in particular The WRA Component of ESA, and are in receipt of NI Credits only, then you cannot be compelled to take part in WFI's or WRA under threat of sanction.

See ESA Reg 54, Paragraphs 1 & 2.:

www.legislation.gov.uk/uksi/2008/794/regulation/54/made

See also :

Part 2 Para 3. of "The Employment and Support Allowance (Work-Related Activity) Regulations 2011" :

www.legislation.gov.uk/uksi/2011/1349/made

Therefore, there is no payment to sanction, as you are not receiving any. You do still have to comply with reassessments, ESA50, etc.

Changes to ESA Sanctions

It is still ESA Reg 35 :

ESA Reg 35 for entry to The SG (LCWRA)

PLUS Post 28/01/13 Amendment of :

(3) In regulation 35(1) (certain claimants to be treated as having limited capability for work-related activity)(6), for sub-paragraph (b) substitute—

“(b)the claimant is-

(i)receiving treatment for cancer by way of chemotherapy or radiotherapy;

(ii)likely to receive such treatment within six months after the date of the determination of capability for work-related activity; or

(iii)recovering from such treatment,

and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or”.

From :

www.legislation.gov.uk/uksi/2012/3096/regulation/4/made

To gain entry to The SG under The Exceptional Circumstance Rules.

If you were going to cite this, you would have to provide evidence as to how and why you would suffer "Substantial Risk" to your own or any body else' health if you were not found to have LCWRA.

It is covered in our "New" ESA Claims Guides, on this page :

ESA Claims Guides

bro58

Hi S,

I have just reviewed your original post.

Are you sure that this is an NI Credits only ESA Claim, as you were rather vague in your original post ?

If you have been assessed as LCW and have been placed into The WRAG, but are not receiving payment of ESA for some other reason, such as a previous overpayment, then you may still have to comply with WFI' s and WRA.

It is just that you state :

" The letter tells me I have been placed in the work-related activity group. It also says that they are now going to start paying me some money every week to which I am obviously not entitled, but that's another battle!"

bro58

Hi bro58,

"Are you sure that this is an NI Credits only ESA Claim, as you were rather vague in your original post ?"

All I know is that for the past 8 years I have been required to apply for incapacity benefit, attend ATOS medicals and jump through the required hoops. I would then get told that I qualified for IB but because of my income the amount I would receive would be nil. I did have my NI credits paid. I presumed that for ESA the same things would happen. I don't know anything about a specific NI credits only claim.

The fact is that my income could stop at any point; my ex-employer's are under no legal obligation to pay me. If that happened then hopefully I would then qualify for contribution-based ESA, although I understand that if I were to remain in the WRAG this would only be for a year.

S