Appeal Confusion - Help Please

In summary:
I have been in receipt of I/B from 1995.

I was required to attend an ATOS medical exam in 2008 and a few weeks later I received confirmation from the DWP that my I/B would continue until the review date in 2013.

In April 2013 I received the Form ESA50 (01/13) and completed this and returned it a few days later.

In first few days of June 2013 I received a letter from DWP stating my benefit is now changed to ESA and I’ve been placed in WRAG group. No explanation or grounds given as to why I’m placed in WRAG and so I appealed the decision on the grounds I believe the cumulative effect of my medical conditions hadn’t been fully taken into account and I should therefore be placed in the Support Group.

In July 2013 I received letter CAP 23 acknowledging my Appeal application.

In July 2013 I then received a letter from my local JC+ asking me to attend a Work-focussed interview. This was subsequently arranged, due to my medical conditions, as an over the telephone interview. The interview concluded with the advisor telling me to apply for more Mobility Benefits and that I would not be required to attend any further work focussed interviews for the next two years or fill out any more DWP forms for the next 2 years.

In September 2013 I received a duplicate CAP 23 letter acknowledging my appeal application.

A few days later I received a bundle of documents and a letter from DWP Appeals confirming my appeal is now being passed to Tribunal Service.

It appears from the documents in the bundle that the decision to place me in the WRAG was done by a Registered Nurse in May 2013 who made the recommendation to place me in the WRAG after reviewing only the paper evidence contained in the 2008 ATOS Medical Report, my replies given in the 2013 ESA50 and GL24 Forms and because I therefore do not meet the Support Group criteria.

The report states that I meet the criteria for having limited ability for work and that work is unlikely for 2 years.

In June 2013 I asked my GP for an urgent review of my medical condition (to support my appeal) but due to an administrative error this review has been delayed but is in the process of being urgently pursued by me.

I am waiting for the Tribunal hearing date and wonder if I may be able to ask for a delay of the hearing if my medical review is not available in time for the hearing date.

I feel confused as though I have been bounced into this situation from lack of clarity by the DWP and would very much appreciate any helpful comments please.

The tribunal can only consider your condition as it was when the decision was first made, they cannot take into account anything that has happened since. If your GP report relates to your condition as it was then it must make this fact 100% clear, otherwise it will be disregarded.

Yes st,

You need to show that you qualified for the SG at the time of the adverse WRAG decision.

In that you either qualified for the SG under at least one of the :

SG (LCWRA)Schedule 3 Descriptors

Or, if none of those were applicable, under ESA Reg 35. (2) (a) & (b) :

"(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if—

(a)the claimant suffers from some specific disease or bodily or mental disablement;

and

(b)by reasons 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."

From :

ESA Reg 35 for entry to The SG (LCWRA)

You may wish to review the relevant ESA Claims Guides on this page :

ESA Claims Guides

If you wished to request an adjournment to the Tribunal hearing, you would have to do so, as soon as you receive a date.

There is no guarantee that The TS would comply with any such request.

bro58

Thanks for reply MrsH

This is precisely my point. It appears they have based the decision upon an old 2008 ATOS medical report which included medical evidence supplied by me than dated 2005 and the answers I gave on my ESA50 Form and the GLA24 (Disagreeing with a decision) Form. I am pretty sure (will check later) the ESA50 Form Notes said - no need to supply Med3 from GP.

Seems to me wrong they can base a decision upon old medical evidence - especially when the condition has worsened since 2008.

Thanks for reply bro.

I have got to look into your links to refresh my understanding.

In the meantime, Tribunal have now replied giving me 14 days to confirm if I want to continue with appeal and that it will take 17 to 21 weeks to give me a date.

It seems to me to be quite wrong if the DWP does not say on what grounds they have made their decision so that a respondent has time to get further evidence to challenge that decision.

The only way to find out about their decision is to appeal it and then when you get the reason - thay pass the matter to the Tribunal before the respondent has reasonable time to get further evidence.

I have now got a consultants report that confirms one of my conditions. Unfortunately the second consultants report has got "lost/delayed" in an IT glitch at the privately run clinic that took over from the NHS clinic.