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TOPIC: Best next step advice please...

Best next step advice please... 11 months 1 week ago #203626

I have just had the decision makers call stating my ESA stops today. She asked if I intend to object, to which I said yes. She then said I needed to speak with JSA as I was no longer eligible for ESA. She put me through to someone at JSA who after clarifying the usual ID checks asked if I was fit to work, to which of course I said no, he responded with well you can’t claim JSA then.

I have now been told I need to speak to the benefits office but I’m unsure where to start I want to be truthful as I am entitled to claim. My illness is Not going to improve.
I am meanwhile due a usual payment in 2 days but am unsure if I still receive that ?
Will a potential ‘new claim ‘ link with my now suspended claim

Curled up on the couch with pneumonia following that aweful bug that hit many over Christmas. Really didn’t think it could get any worse
SuziQ

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Best next step advice please... 11 months 1 week ago #203637

Suzi

Sorry to hear this.

AT the moment the only benefit that you can claim is JSA, you can only make a new claim for ESA if you can show a new condition or a substantial deterioration in your existing conditions since the Decision, that would reasonably result in an award of ESA.

To claim JSA you must declare yourself Fit for Work, you are already legally classed as such and doing so will have no impact on any MTR or appeal that you might make, once your JSA claim is accepted and in payment then you can present a new Fit Note and be excused from your Claimant Commitment for up to 13 weeks.

If it goes to appeal then you should be able to receive the ESA Assessment rate while you wait for a hearing.

ESA is paid in arrears so you should receive at least one more payment although it may not be the full two weeks, depending on your normal payment date.

The first stage to challenging a Decision is for you to request a Mandatory Reconsideration, this needs to be done in writing to the DWP, within one month of the Decision, to the office that dealt with your claim, have a look at our ESA MR & Appeal guide for details of the process, the ESA area also has template letters that you can use to make the request with.

www.benefitsandwork.co.uk/help-for-claimants/esa1

You should contact the DWP for a copy of the assessment report (ESA85), if you have not already done so, I would phone them but again follow up the request in writing. Once you have the assessment report you will have a better understanding of how the DWP Decision Maker has come to their conclusions and will then be able to argue against them.

Your primary task is to show that you meet the criteria, there are many reasons you may have failed, you need to address each of these but don't get bogged down in criticising the assessment report unless you can clearly show that it is incorrect, it is a lot easier to argue the facts of the situation;

"the assessor recorded that I walked 50m, I did but they have failed to document that I had to stop every 10m for a rest due to breathlessness"

than their opinions

"based on my observations of the claimant walking I believe that they can reliably walk more than 200m.

When you have a better idea of the issues with your claim, come back to the forum and we will do our best to help.

Gordon

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Nothing on this board constitutes legal advice - always consult a professional about specific problems

Best next step advice please... 11 months 1 week ago #203658

Gordon

Thanks for that information.

My Dr has just confirmed I have pneumonia following that ‘bug’ going round. I am on 10 days antibiotics & steroids with bed rest ...

I obviously mentioned the decision to my GP who was very Angry that his Opinion & indeed the fact that he covered me by a Fit note until 16/2/18 which they are in possession of. His decision has not altered. He feels I am not fit for work.
Because the degeration in my knee has increased enormously, in the last 3 months the 1st surgery is mute, resulting in the need for a new replacement. The waiting list being up to 50 weeks once scheduled. This is new information on an old topic ( but a topic that might have been cured had the surgery been successful ). Is this sufficient to claim for ESA?

SuziQ

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Best next step advice please... 11 months 1 week ago #203674

Suzi

You can certainly see what the DWP will say, but I am afraid I don't think either problem will meet the criteria for a new ESA claim. The Pneumonia I would expect to be temporary and would at best meet Regulation 29 for Substantial Risk. As to the knee problems, the DWP will likely take the view that these problems were considered as part of your recent assessment and were not considered as sufficient to warrant an award.

Gordon

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Best next step advice please... 11 months 1 week ago #203709

Hi Gordon
My mistake, I didn’t mean to imply using my recent bout of Pneumonia for the purpose of a claim, I was venting, as like others one thing after another this was the icing on the cake.

I’ve had a good read through your ESA guides. Has the system altered from September 2015 ? Which was the last time I attended a tribunal & won.
At that time I did not make either a new ESA or JSA claim I received a lower ESA payment which was then backdated once the decision was overturned.

I obviously do not want to be starting a new claim on false or created information. The conditions listed in my existing claim have in the professional opinions of that of my GP & consultant considerably worsened since I won my tribunal. With no future sign of repair only increased degeneration.

I am sorry if I’ve gone round the houses. Even though I’ve been through this before & won ( with benefits and work help of course ) its the initial shock & panic that I think hits us all.

SuziQ

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Best next step advice please... 11 months 1 week ago #203724

Suzi

So during the MR stage the only benefits you can receive are JSA or UC if you are in a fully live area, however, this does not appear to be the case.

If you go on to appeal then you can ask the DWP to pay you the ESA Assessment rate while you wait for a hearing. You will need to provide Fit Notes throughout this period.. If you don't claim another benefit and can provide a new Fit Note from the day after your ESA claim was closed then the Assessment rat should be backdated.

Gordon

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Nothing on this board constitutes legal advice - always consult a professional about specific problems
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