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ESA Appeal
- Tinol
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6 years 5 months ago #210118 by Tinol
ESA Appeal was created by Tinol
Hello,
First time poster here. In July 2017 I was diagnosed as having Autistic Spectrum Disorder (ASD), a condition which affects my communication and socialisation abilities. As such, in August 2017 I applied for Employment and Support Allowance (ESA) and was subsequently placed in the assessment phase. In November 2017 I attended a Work Capability Assessment (WCA) and was deemed as being "fit for work". Although I appealed, initially through the Mandatory Reconsideration process, this was not overturned and I was forced to appeal through a first-tier tribunal.
Earlier this month my appeal was heard and a day or so later I received a letter that stated the following:
"1. The appeal is allowed.
2. The decision made by the Secretary of State on xx/11/2017 is set aside.
3. (Surname) has limited capability for work. The matter is now remitted to the Secretary of State to make a final decision upon entitlement.
4. This is because insufficient points were scored to meet the threshold for the WCA, but Regulation 29 of the ESA Regulations 2008 applied.
5. No Schedule 3 descriptor applied. Regulation 35 of the ESA Regulations 2008 did not apply.
By reasons of the medical conditions as set out in the claim pack (surname) is significantly limited. Nevertheless, he does not score sufficient points. However, if he were found capable of work this would result in a substantial risk of a deterioration in his mental health. In reaching its decision the Tribunal placed particular reliance upon the oral evidence of the Appellant and the claim pack.
Any recommendation given below does not form part of the Tribunal's decision and is not binding on the Secretary of State.
The Tribunal recommends that the Department does not reassess (surname) within 12 months from today's date."
However, I note that the letter does not state which ESA group I would be entitled to, and I am wondering whether the legislation cited could provide some indication as to what this might be?
In addition, I am also attending a Personal Independence Payment (PIP) assessment in a few days time, so any advice on this would also be greatly appreciated.
First time poster here. In July 2017 I was diagnosed as having Autistic Spectrum Disorder (ASD), a condition which affects my communication and socialisation abilities. As such, in August 2017 I applied for Employment and Support Allowance (ESA) and was subsequently placed in the assessment phase. In November 2017 I attended a Work Capability Assessment (WCA) and was deemed as being "fit for work". Although I appealed, initially through the Mandatory Reconsideration process, this was not overturned and I was forced to appeal through a first-tier tribunal.
Earlier this month my appeal was heard and a day or so later I received a letter that stated the following:
"1. The appeal is allowed.
2. The decision made by the Secretary of State on xx/11/2017 is set aside.
3. (Surname) has limited capability for work. The matter is now remitted to the Secretary of State to make a final decision upon entitlement.
4. This is because insufficient points were scored to meet the threshold for the WCA, but Regulation 29 of the ESA Regulations 2008 applied.
5. No Schedule 3 descriptor applied. Regulation 35 of the ESA Regulations 2008 did not apply.
By reasons of the medical conditions as set out in the claim pack (surname) is significantly limited. Nevertheless, he does not score sufficient points. However, if he were found capable of work this would result in a substantial risk of a deterioration in his mental health. In reaching its decision the Tribunal placed particular reliance upon the oral evidence of the Appellant and the claim pack.
Any recommendation given below does not form part of the Tribunal's decision and is not binding on the Secretary of State.
The Tribunal recommends that the Department does not reassess (surname) within 12 months from today's date."
However, I note that the letter does not state which ESA group I would be entitled to, and I am wondering whether the legislation cited could provide some indication as to what this might be?
In addition, I am also attending a Personal Independence Payment (PIP) assessment in a few days time, so any advice on this would also be greatly appreciated.
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6 years 5 months ago #210126 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic ESA Appeal
Alex
Limited Capability for Work means a WRAG award. Well done.
The PIP assessment will not be disimilar from the ESA one you had, the PIP Claim guide has a sectio on the questions you are likely to be asked.
www.benefitsandwork.co.uk/help-for-claimants/pip.
Gordon
tags: @RESULT @ESA @APPEAL
Limited Capability for Work means a WRAG award. Well done.
The PIP assessment will not be disimilar from the ESA one you had, the PIP Claim guide has a sectio on the questions you are likely to be asked.
www.benefitsandwork.co.uk/help-for-claimants/pip.
Gordon
tags: @RESULT @ESA @APPEAL
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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6 years 5 months ago #210128 by Tinol
Replied by Tinol on topic ESA Appeal
Gordon,
Thank you for your reply.
Is there any way I can appeal the decision and be placed into the Support Group instead? My condition is not the type that will ever go away, so I am slightly confused as to why I have been placed into the WRAG, which suggests that I might be able to return to the workplace at some point in the future.
Regards
Thank you for your reply.
Is there any way I can appeal the decision and be placed into the Support Group instead? My condition is not the type that will ever go away, so I am slightly confused as to why I have been placed into the WRAG, which suggests that I might be able to return to the workplace at some point in the future.
Regards
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6 years 5 months ago #210137 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic ESA Appeal
Alex
Whilst the DWP and the Government might associate the WRAG with a potential return to work that is not what the legislation says!
I'll be honest an say that I think you will struggle to get into the Support Group, the Tribunal did not award any points for the Descriptors so your only route into the Support Group is Regulation 35 which would require there to be a significant risk of harm to you or others if you were asked to undertake Work Related Activity. The panel will have looked at this and decided that you did not meet the criteria. The criteria is explained in the ESA Claim guides under Substantial Risk.
www.benefitsandwork.co.uk/help-for-claimants/esa1
So you have two options going forward.
You can attempt to take the appeal further, however, you cannot do so because you disagree with the Decision, rather because you can show that there was an Error of Law in the making the Tribunal's Decision.
The first stage to you doing this is to request a Statement of Reasons from the Judge in charge of your hearing., Be aware, the DWP will also receive a copy which opens the door for them to challenge the Decision as well.
Tribunals – Requesting a Statement of Reasons
What is an Error of Law?
Your other alternative is to ask to be reassessed again based on a deterioration in your conditions, can you show that this has happened?
There is a risk to this, given the original Decision that you appealed and the Tribunal Decision that you might be found Fit for Work again and have to restart the process again.
A reassessment will include a new ESA50 to complete and almost certainly a face to face assessment.
Gordon
Whilst the DWP and the Government might associate the WRAG with a potential return to work that is not what the legislation says!
I'll be honest an say that I think you will struggle to get into the Support Group, the Tribunal did not award any points for the Descriptors so your only route into the Support Group is Regulation 35 which would require there to be a significant risk of harm to you or others if you were asked to undertake Work Related Activity. The panel will have looked at this and decided that you did not meet the criteria. The criteria is explained in the ESA Claim guides under Substantial Risk.
www.benefitsandwork.co.uk/help-for-claimants/esa1
So you have two options going forward.
You can attempt to take the appeal further, however, you cannot do so because you disagree with the Decision, rather because you can show that there was an Error of Law in the making the Tribunal's Decision.
The first stage to you doing this is to request a Statement of Reasons from the Judge in charge of your hearing., Be aware, the DWP will also receive a copy which opens the door for them to challenge the Decision as well.
Tribunals – Requesting a Statement of Reasons
What is an Error of Law?
Your other alternative is to ask to be reassessed again based on a deterioration in your conditions, can you show that this has happened?
There is a risk to this, given the original Decision that you appealed and the Tribunal Decision that you might be found Fit for Work again and have to restart the process again.
A reassessment will include a new ESA50 to complete and almost certainly a face to face assessment.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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6 years 5 months ago #210376 by Tinol
Replied by Tinol on topic ESA Appeal
Thank you for your detailed reply, Gordon.
I have received a letter from the DWP which states the following:
"I am writing to tell you that we cannot pay you arrears of ESA. This is because we are applying for a statement of reasons from the Tribunals Service for the decision made and may appeal against the First-tier Tribunal's decision. You have no right of appeal against this decision. If your circumstances change it may affect the amount of benefit you get. Please tell us about any changes in your circumstances. We will write to tell you what happens next."
What does this mean and what should I do next?
I have received a letter from the DWP which states the following:
"I am writing to tell you that we cannot pay you arrears of ESA. This is because we are applying for a statement of reasons from the Tribunals Service for the decision made and may appeal against the First-tier Tribunal's decision. You have no right of appeal against this decision. If your circumstances change it may affect the amount of benefit you get. Please tell us about any changes in your circumstances. We will write to tell you what happens next."
What does this mean and what should I do next?
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6 years 5 months ago #210387 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic ESA Appeal
Alex
So one of the options I mentioned was your appealing the Decision further, the DWP also have this option and this letter is saying that they have chosen to exercise it.
I'm afraid as a result of this, your award will not be put into payment until the matter is resolved.
The Statement of Reasons can take anything from a couple of weeks to a couple of months to be delivered, once it has then you and the DWP can look to see if there are any Errors of Law.
Gordon
So one of the options I mentioned was your appealing the Decision further, the DWP also have this option and this letter is saying that they have chosen to exercise it.
I'm afraid as a result of this, your award will not be put into payment until the matter is resolved.
The Statement of Reasons can take anything from a couple of weeks to a couple of months to be delivered, once it has then you and the DWP can look to see if there are any Errors of Law.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
The following user(s) said Thank You: Tinol
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