CB ESA query

After waiting in excess of 18 months for his first WCA assessment and having to contact our M.P. in desperation, my husband's medical finally took place 2 weeks ago. As we aren't hopeful of a S.G. award, we are trying to prepare for the next round of the fight! We intend to request a M.R. and proceed to appeal if necessary. We will use the members' guides for these, as we hadn't discovered this site prior to completing the ESA50.
Please could you confirm the requirements relating to work related activities for claimants receiving N.I. credits only CB ESA? Am I correct in my belief that attendance is voluntary if he isn't receiving any money, as is the case at the moment, due to the 365 day rule and the fact that I work full time?
Thanks in anticipation of any clarification you can give us.

Petespa wrote: After waiting in excess of 18 months for his first WCA assessment and having to contact our M.P. in desperation, my husband's medical finally took place 2 weeks ago. As we aren't hopeful of a S.G. award, we are trying to prepare for the next round of the fight! We intend to request a M.R. and proceed to appeal if necessary. We will use the members' guides for these, as we hadn't discovered this site prior to completing the ESA50.
Please could you confirm the requirements relating to work related activities for claimants receiving N.I. credits only CB ESA? Am I correct in my belief that attendance is voluntary if he isn't receiving any money, as is the case at the moment, due to the 365 day rule and the fact that I work full time?
Thanks in anticipation of any clarification you can give us.

Hi Ps,

Good luck with your husband getting into The SG, and please keep us updated !

If your Husband is in The WRAG but receives NI Credits only as he has exhausted his 365 days entitlement to payment of CB ESA and cannot pass the means test for IR ESA due to you working, he cannot be compelled to take part in any form of WRA whilst in receipt of NI Credits only !

This is reiterated in DMG Chapter 53 @ Para 53014. 4.

"53014 The conditions referred to in DMG 53013 are that the claimant is

1. entitled to ESA or an advance award of ESA2 has been made (DMG 53200 et seq)

and

2. not a member of the support group

and

3. under the age at which a woman of the same age as the claimant attains pensionable age (see DMG Chapter 75)

and

#4. not a person who is only entitled to ESA(Cont) payable at nil rate#

and

5. not a lone parent who is responsible for and a member of the same household
as a child aged under one."

From : DM Guide CH 53.

See also : ESA Regulation 54 (2) (d)

Payable at "nil rate" means in receipt of NI credits only !

As he doesn’t have to comply with WFI’s he doesn’t have to comply with any other form of WRA either.

So as you correctly assume, your husband taking part in any form of WRA is purely voluntary.

bro58

Hello again,

We have now received my husband's award letter and it is as we suspected for the WRAG. In anticipation, we had already sent a written request for his records including the ESA85 and 113, should one have been issued. This request was signed for on Wednesday 3rd of Feb. On 13th Feb, he received a letter stating that the information cannot be provided without completion of the "confirmation of identity form" which they enclosed. We feel that this is a delaying tactic and means that we are probably going to have to submit the M.R. without the doctor's report, as it is due back by 28th of Feb. Please do you have any suggestions of how we should proceed, apart from continuing to dance to their tune?

We suspect that the reason for failing allocation to the Support group is his use of an "imaginary wheelchair". Please does anyone have any experience in successfully challenging this, or any hints or tips which we may find useful?

Please do you know if being unable to flee a dangerous situation, or the possibility of impeding the safe exit of others may support one of the special circumstances, or if they are primarily for the risk of self harm/suicide?

Sorry for the length of the post and the number of questions!
Thanks again for any advice you can give.
Kind regards,
Petespa

Petespa wrote: Hello again,

We have now received my husband's award letter and it is as we suspected for the WRAG. In anticipation, we had already sent a written request for his records including the ESA85 and 113, should one have been issued. This request was signed for on Wednesday 3rd of Feb. On 13th Feb, he received a letter stating that the information cannot be provided without completion of the "confirmation of identity form" which they enclosed. We feel that this is a delaying tactic and means that we are probably going to have to submit the M.R. without the doctor's report, as it is due back by 28th of Feb. Please do you have any suggestions of how we should proceed, apart from continuing to dance to their tune?

We suspect that the reason for failing allocation to the Support group is his use of an "imaginary wheelchair". Please does anyone have any experience in successfully challenging this, or any hints or tips which we may find useful?

Please do you know if being unable to flee a dangerous situation, or the possibility of impeding the safe exit of others may support one of the special circumstances, or if they are primarily for the risk of self harm/suicide?

Sorry for the length of the post and the number of questions!
Thanks again for any advice you can give.
Kind regards,
Petespa

Hi Ps,

Did you make your request for The ESA Documentation using a Subject Access Request (SAR) Form as suggested : Here. ?

If you did so, there should be no need for further confirmation of identity !

Even if you made the request in the form of a letter, as long as it included his DOB, NI Number, full name address and Postcode that should have been enough !!

May well be delaying tactics if you did either of the above.

You have one month from the date of The WRAG Decision Notice letter to request an MR of the decision.

You should ensure that your written MR request is posted in good time to arrive back at DWP ESA no later than close of business on the the deadline date for return !!

Therefore, if you do not have the Doctor's report, or any other documentation that you are awaiting, you should still post your MR to arrive back by the deadline date, but add comment that you have requested his ESA documentation from The DWP, and are also awaiting the report from the Doctor, that being the case of course, and you will forward the fresh evidence once you receive the above !

They are supposed to allow at least 4 weeks after receipt of the MR to submit fresh evidence, but don't always do so !!

Sending Documents to the DWP.

See our : ESA MR/Appeals Guidance and Sumissions

&


Disability Rights UK Factsheet - Appeals and Mandatory Reconsiderations.

There is also information on tackling the "Virtual Manual Wheelchair" issue in our : ESA Claims Guides 2nd & 3rd links down the page.

If it turns out that they are assessing him as being able to self propel a manual wheelchair unaided for more than 50 metres, even though they accept that he cannot "walk" more than the 50 metres aided or unaided as in :

Activity 1. :

"1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally or could reasonably be worn or used.2

Descriptor 1. (a) OR (b)

"1 Cannot either:

(a) mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;

or

(b) repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion."

From : The Functional SG (LCWRA) Schedule 3 Activities/Descriptors

You need to concentrate on "why" he could not self propel a Manual Wheelchair unaided, so you are looking at upper body limitations resulting from problems with his neck, cervical spine, shoulders or with arms, elbows, wrists, hands, grip, or other issues that may affect the same etc, etc.

Sitting limitations that may arise from Lumber Spinal Problems.

Breathlessness and fatigue that would be caused by self propelling the manual wheelchair !

It is widely accepted that self propelling a manual wheelchair any distance is more strenuous and demanding than walking the same distance !!

Has he ever been advised to use a manual wheelchair ? if not ,would a doctor, G.P. or other treating HCP provide a letter supporting the fact that they feel him using a Manual Wheelchair would not be appropriate, "Reasonable" or helpful with his medical conditions.

Is he able to Transfer from one seated position to another unaided, as with Activity 2/ Descriptor 2 of The SG Activities/Descriptors as that would obviously be necessary to using a manual wheelchair ?

Is it "Reasonable" to expect him to be able to use a manual wheelchair ?

Are there steps to your home ?

Is your path on a steep slope, is it uneven, etc, etc ?

Do you have level access to your home ?

Do you have somewhere to store the wheelchair in your home ?

etc, etc !!!!

With regards to these Activities, to be classed as being able to carry them out, he must be able to do so Repeatedly, Reliably and Safely for The Majority of The Time. (>50% of the time)

Has this been taken into account, if he can't do so as above ?

Further, for The SG, not only must he be able to carry out the Activity for the majority of the time as above, he must also be able to carry the Activity out on the majority of occasions that he "Attempts" them :

ESA Reg 34. (2) Applicable to Support Group :

“A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor”

www.legislation.gov.uk/uksi/2008/794/regulation/34/made

With respect to qualifying for The SG under ESA Reg 35 "Exceptional Circumstances Rule", you would need to show how and why there would be a "Substantial Risk" to his physical or mental health or that of another person if he was not placed into The SG and therefore had to comply with Work Related Activity, including WFI's.

As seen in ESA Reg 35. (2) (a) and (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)

Again, this is covered in our ESA Claims Guides !!

You can also review The WCA Handbook which advises ESA Assessors on how they are supposed to carry out the assessment with respect to the different Activities and what they are supposed to take into account :

2nd link down under "DWP ESA Resources" on This Page

Hope the above helps and please keep us updated by replying to this topic !

You should Bookmark/Favourite this page in your Internet Browser now. That way you can return to this topic easily to pose any further queries that you may have by replying to the topic.

bro58

Hello again,

Thank you so much for your prompt and detailed reply. I'm sure it will be really helpful in preparing the mandatory reconsideration request.

I managed to speak to the lady at DWP who sent the letter and form to be completed for the SAR. She said that she can't release anything until she receives the signed form, as the rules are exact meaning the letter is insufficient! She did however say that she will start gathering the info in readiness. I sent the form 1st class, to be signed for, on Monday 15th, so hope it won't take too long to reach her.

I stressed to her my need for the info in order to prepare the M.R. prior to the deadline. (The doctor's report I am waiting for is the ESA85, prepared by the Maximus doctor after the assessment). She said she was sure they would make allowances for the request being late, if it was because we hadn't received the SAR. I told her that I wasn't prepared to risk that and would lodge the request before 28th of Feb and explain that I may send further evidence once I had received it.

Thanks once again for your help. I will let you know how we get on.
Kind regards,
Petespa

Good evening.

My husband's ESA WRAG mandatory reconsideration came back unchanged, which I understand is par for the course. I need to get the appeal paperwork in the post tomorrow, in order to meet the deadline of the 19th. Please could you advise if we should send copies of all of the evidence we have already provided to the DWP, or wait until we receive our copy of the DWP pack then just send anything missing after that?

The CAB were unable to help at their drop in service, so I am trying to put something together using your guides. I don't think I can fit the reason for appeal into the box on the SSCS1, so please do you know if a typed A4 sheet will be acceptable, as long as I make sure it is headed with his name and N.I. No, just in case it gets separated?

Thanks again,
Petespa