URGENT: 'Refusal To Participate' ATOS Appointment

I did not attend ATOS WCA 29 days ago.

I did not feel well.

DWP wrote (form BF223(ESA)) 28 days ago, asking for my reasons to be submitted before October 3.

I replied on October 1, explaining I was not well.
Coincidentally, I had a doctor's appointment that same day which I cancelled for the same reason.

DWP wrote (letter ESA80) stating they looked at my reasons for not attending ATOS WCA and decided I am capable of work. My ESA has been withdrawn altogether (as of September 25).

WHAT DO I DO?

My doctor has provided me with a letter stating I had an appointment on September 25 but called to cancel the appointment saying I was unwell.

SHOULD I GO AHEAD AND ASK FOR A RECONSIDERATION?

Is the doctor's letter enough to have DWP reconsider their decision?

Note 1: The ATOS WCA was cancelled on a previous occasion.

Note 2: I did not inform ATOS this time I could not attend.

Note 3: The reason I did not attend is because I had a sudden onset of frequent trots to the loo and flu-like symptoms (probably food poisoning) which lasted over 3 days.

I HAVE HAD NO INCOME (apart from CTC and CH/B for one child).

URGENT ADVICE NEEDED TODAY SO THAT I MAY POST A LETTER TO THEM.

Thank you in advance.

Gordon

Thank you for your time replying to my post.

You say I will not continue to receive ESA - even at the assessment rate, while I appeal the decision.

If that is the case, and because I am broke, I see no alternative but to claim JSA immediately. At least that way I will not have the constant worry dealing with ATOS.

Can JSA be backdated to when my ESA was stopped to fill in gaps of non-payment?

Once I am in receipt of JSA, and still within the time limits, I intend to appeal the DM's decision.

Is this a good strategy (or is it just me throwing in the towel)?

Since my last post, and after much research, I have decided to appeal the case. Here is a copy of a letter I wrote to DWP. Hopefully, they will reconsider and resume payments.


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30 October 2013

Dear Sir or Madam

I appeal your decision dated 4 October.

I enclose a letter from my doctor dated 15 October confirming a cancelled appointment on 25 September due to ill health. This is the same day I was due to attend a Work Capability Assessment.

In a letter dated 1 October (BF223(ESA) 10/08) I gave a brief overview as to why I did not attend a WCA in particular, I was feeling unwell with flu-like symptoms and gastric upset consisting of severe stomach cramps, diarrhea, a sore and uncomfortable anus, high temperature, headache and dizziness. I felt weak and unable to leave my home without feeling severe discomfort and pain.

On 4 October, you wrote (ESA80) stating you looked at my reasons for not attending the assessment, or my refusal to participate fully with the assessment.

Provision is contained in vol. 8 ch. 42 para. 42267 of the Decision Makers Guide where a claimant was too ill to attend an assessment at the time of the appointment because of a condition unrelated to his disability.

A telephone call to your offices on 29 October confirms my ESA was terminated because I failed to attend a WCA without good cause.

Vol. 8 ch. 42 para. 42381(3) and 42382 of the DMG (consideration of good cause due to the nature of any disability a claimant has) in particular, where non-attendance or failure to attend is judged reasonable and likely on the balance of probabilities may not have been applied with proper consideration.

Good cause is not defined in legislation however, vol. 1 ch. 1 para. 01092 of the DMG states good cause “includes any facts which would probably have caused a reasonable person to act as the claimant acted”.

Given the nature of my illness on the day of the assessment, and the pain and discomfort I felt, I feel any reasonable person would have acted as I did.

Also in your letter dated 4 October, you wrote stating a decision maker has decided I am capable of work from 26 September 2013 and that I am no longer entitled to ESA.

During the telephone call to your offices on 29 October I was informed I had previously cancelled two appointments on good cause.

Vol. 1 ch. 4 para 04857 (Suspension where claimant fails to have a medical examination) states failure to attend a medical examination as a condition of receiving benefit on at least two consecutive occasions without good cause may result in suspension of benefit.

Vol. 1 ch.4 para. 04860 (Termination where claimant fails to have a medical examination) states where a claimant fails, without good cause, to attend for a medical examination on at least two consecutive occasions, and in the case where benefit has been suspended, and following the suspension, continues to fail to have a medical examination, benefit can be terminated.

There has not been two consecutive failures to attend a WCA without good cause, and my benefit has not previously been suspended.

I have been advised proper procedure to terminate my ESA, as set out in the decision makers guide, has not been followed.

Yours sincerely
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