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ESA stopped due to non arrival of WCA letter

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7 years 3 months ago #176951 by brabazon
Hi,
I have Asperger's syndrome and CFS/M.E. plus other long term health problems and I’m partially housebound. My ESA has just been stopped, along with my Council Tax Support, because at the end of October the CHDA apparently issued me with an appointment for a WCA medical that I was never notified of. Either their records are wrong or else the letter got lost in the post. There doesn’t seem to have been any requirement for me to confirm receipt of the first letter and they didn’t send a reminder, so I knew nothing about it till the DWP contacted me about not attending. I’m applying for a Mandatory Reconsideration and if that doesn’t work I shall appeal. I’m also taking it up with my MP who’s been helpful in the past and is a member of the Work and Pensions committee.

At the moment my MP’s caseworker is pushing me to apply for JSA - she thinks this is the best solution and that it will protect my DLA claim. I think this is a bad idea - I am too ill to work, too ill to cope with applying and feel that lying about my availability for work could actually damage my DLA entitlement. I’d rather just try and manage until I get my ESA back because I think I’ve got a good case and I’m willing to take it to the Ombudsman if necessary. I’m posting this in the hope of some specific advice on the JSA issue because of the pressure I’m being put under. The caseworker seems to see it as a quick and easy ‘fix’ which it isn’t, in fact the thought of it depresses me so much that I’m starting to feel as if I can’t face living much longer.

Some extra info: I was transferred from Incapacity Benefit onto ESA several years ago and have been in the Support Group ever since. I’m due to get my State Pension in March 2017. In May 2016 I was sent an ESA50 form to fill in. I raised this with my MP and was advised that the form was just routine and in view of my age and health issues it would be unlikely that I'd be called in for a WCA medical. I completed the form and sent it back by the due date. I didn’t hear anything further from either the CDHA or the DWP until 25 November when I got a letter (BF223ESA) saying I’d been booked in for a WCA medical on 24 November and had not attended. It asked me to explain why I didn’t go and included a threat that my benefits might be stopped.

I contacted my MP’s office again and the caseworker I’d dealt with before rang the DWP on my behalf. I then sent back the completed reply form to the DWP with a covering letter explaining I hadn’t received any notification of the appointment. On 16 December I got an ESA80 letter from DWP saying that I’ve been found capable of work from 25 Nov 2016. It states that the decision to award Employment Support Allowance (Income Related) from and including 22/05/12 has been superseded because I failed to attend or submit to a medical examination in relation to the WCA. They say the CHDA system shows an appointment letter being issued to the correct address on 31/10/16. (Note:they don’t say anything about a reminder or any attempts to contact me by phone.) They then say that since I’ve received the previous two ESA letters sent to me at this address they don’t accept my explanation that I wasn’t notified because ‘on the balance of probability’ I must have been.

I really want to pursue this. I’d understood that a diagnosis of Asperger’s had to be taken into account when deciding how cases are handled, and I also know from my MP that there’s a mental health flag on my claim file. In any case, nobody’s benefit entitlement should depend entirely on the safe arrival of a single piece of post. For the record, I know my post goes missing because sometimes things I order online from reputable suppliers don’t arrive. I also regularly get post that isn’t for my address and I’ve made at least one formal complaint to Royal Mail and several informal ones regarding the inefficiency of our local delivery office. Several houses near me are standing empty at the moment, including one next door, so my WCA appointment letter, assuming it was ever sent, could be in any of those houses.

Sorry this is so long, hope someone can help.
Many thanks,
Brabazon

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7 years 3 months ago #177007 by Gordon
brabazon

I'm afraid this is going to be a long struggle to get your ESA re-instated.

The DWP are entitled to assume that a letter sent to you will have been received so you need to show that it was either addressed incorrectly, was not sent in to you, or that there were problems with the post in your area that could reasonably account for it being received.

In regard the first two options and despite the DWP saying the letter was correctly addressed you should make a Subject Access Request to Maximus for a copy of the invitation letter, proof that it was printed and that it was sent to you.

A letter to them with a heading of "Subject Access Request" requesting the information should be sufficient.

You mention problems with the post in your area, has this been documented, supplying copies of this will certainly help.

There is no requirement for you to acknowledge receipt of the appointment and Maximus are not required to confirm or remind you either by mail or phone of the appointment!

Claiming JSA is up to you but you are not entitled to any other benefits to replace your ESA.

The first stage to challenging this 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

Gordon

Nothing on this board constitutes legal advice - always consult a professional about specific problems
The following user(s) said Thank You: brabazon

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7 years 3 months ago #177008 by Gordon
brabazon

I'm afraid this is going to be a long struggle to get your ESA re-instated.

The DWP are entitled to assume that a letter sent to you will have been received so you need to show that it was either addressed incorrectly, was not sent in to you, or that there were problems with the post in your area that could reasonably account for it being received.

In regard the first two options and despite the DWP saying the letter was correctly addressed you should make a Subject Access Request to Maximus for a copy of the invitation letter, proof that it was printed and that it was sent to you.

A letter to them with a heading of "Subject Access Request" requesting the information should be sufficient.

You mention problems with the post in your area, has this been documented, supplying copies of this will certainly help.

There is no requirement for you to acknowledge receipt of the appointment and Maximus are not required to confirm or remind you either by mail or phone of the appointment!

Claiming JSA is up to you but you are not entitled to any other benefits to replace your ESA.

The first stage to challenging this 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

Gordon

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

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7 years 2 months ago #179089 by brabazon
Replied by brabazon on topic ESA stopped due to non arrival of WCA letter
Dear Benefits and Work,

I'm writing to let you know that having followed your very detailed and helpful advice I've now been informed by the DWP that my ESA benefit is being reinstated and a back payment has been made to cover the period during which it was suspended. What a relief!

Thank you so much for helping me get through this, it makes the most tremendous difference when the dreaded DWP letters turn up on the mat to know there is somewhere I can turn to for support and advice.

All good wishes,

Brabazon

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7 years 2 months ago #179106 by slugsta
Replied by slugsta on topic ESA stopped due to non arrival of WCA letter
That's great news, thanks for letting us know! :)

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