is the income based esa time limited?

Hi

Firstly, congratulations and thank you to all those involved in making this such a very helpful site.

The background to my case is as follows:-
- I have been on esa since spring 2009.
- I had an atos medical in mid 2009. It awarded me 6 points for 1 mental descriptor. It failed to award me any points for any physical descriptors.
- I appealed. The appeal was mid 2010. I didn’t prepare that appeal well because I was too (mentally) ill at that time and had been unable to get an adjournment. The Tribunal (one of the Tribunal members was a doctor) awarded 24 points for 4 mental descriptors. They also put me in the work related activity group.
- The hearing was approx 30 minutes long. Half of this time was my waiting outside as the Tribunal had requested, while they read my esa50 given to them that day (the DWP’s defence had said they hadn’t had had my esa50, even though it had been delivered before the 2009 medical) and reviewing medical evidence that pre-dated the 2009 medical.
- The Tribunal members were very attentive and to my mental health problems but I have no recollection of they discussing my physical problems with me. Some of my physical problems had been diagnosed at that time but no documents were asked by the Tribunal and a key letter only arrived after that hearing. The issues had been referenced in the 2009 esa50. I never thought to question this because my esa had remained intact at that time.
- Diagnosis of other physical problems is still on-going and I currently have no medical evidence to show the results of these, other than my doctor writing to confirm that they are on-going investigations.
- I have now been asked by atos to complete another esa50 with a view to attending a new medical.

Now to my questions.

(1) Does being on income based esa have any limit of time when one is at risk of it being stopped? I have heard rumours that one cannot be on it for more than 2 years and this is worrying me?

(2) When I have been put on the work related activity group last year, when does this mean I will be expected to work?

(3) In completing the esa50 now:-

(a)I have seen on this website that other mental descriptors can also apply in relation, and in addition, to those determined by the Tribunal last year. No mention was made by the Tribunal to me of any of these other mental descriptors in my presence.

Should I assume that the Tribunal would have taken into account all of these other mental descriptors as well, that they cannot apply as well, or should I now include them in my esa50 ie. in case there was any chance that the Tribunal missed them somehow?

(b) The causes of my mental health problems have not changed since the Tribunal’s decision mid last year ie. the same 24 points should still apply.
Is my doctor’s written confirmation important to include with this esa50 that my condition has not improved re the descriptors stated by the Tribunal last year?

(c) How do I deal with the physical problems that I have when they were not addressed by the Tribunal last year in my presence. I certainly have no wish to appear critical of the Tribunal because I did find them very attentive to my mental health problems, I had been terrified to attend a hearing and when unwell, and they made the hearing feel human.
I can provide copies of all of the medical correspondence for the physical problems diagnosed to date any my doctor can confirm that the others are on-going investigations.

What is the best way to handle this?

(4) Is it usual to ask me to attend a medical when the Tribunal have only seen me last June?

(5) The DWP have given me an extension to return my esa50 because it was wrongly delivered by Royal Mail, causing me to only get it more than a month late and days before its January 2011 deadline to return it to atos. The DWP have also extended this date to accommodate my being able to see my doctor, that he can see my esa50 before it is returned to atos and add any medical evidence he feels is necessary.

In the meantime, I have since learned that Royal Mail’s error has now catapulted me into what atos explained is an automatic medical appointment system ie. despite that the DWP gave me an extension beyond the January 2011 date to return the esa50 to atos, atos still booked my medical for last week when I hadn’t returned it to them by their mid January 2011 deadline date. Atos said this was because the DWP hadn’t told them to hold on the appointment booking process, which the DWP told me they would do so but then, as it transpired, didn’t do so. Atos also said that because my first appointment was then already booked, that they are only allowed to change the appointment once and that, when they do so, the new date has to be within 3 weeks of the date of the request to change the appointment.

The consequence of all of this is that my medical appointment is already set before anyone at atos, or in the DWP, has had sight of my esa50 (with any accompanying medical evidence) and it may well be that atos will only get it shortly before the medical.

My questions here are then, what the rules are for:-

(a) Is a medical automatically required even when my doctor confirms that the Tribunal’s findings of last year still apply today? I don’t understand how these things work but it does seems very peculiar when a claimant doctor would agree with the Tribunal’s findings, when the Tribunal also including a doctor, as opposed to an atos professional who may be medically trained but who may well not be trained specifically in my areas of illness and who assesses everything in a short period. It also seems very peculiar that a claimant is already deemed to need a medical but when the party determining this hasn’t had sight at that time of the claimant’s current medical status (esa50/medical evidence).

(b) Is there are rule as to how much time atos are supposed to leave between getting the esa50/medical evidence and having the medical appointment ie. that a claimant can be assured that the atos have sufficient time to digest the issues in the esa50/medical evidence.

I apologise for the length of my questions but I am distressed by all of this and I do not want to be exposed again to any problem with the atos medical and/or appeal if I am properly armed with the right information and can avoid pitfalls this time. I also thought that my questions might help other users of this site and I hope that they do.

Many, many thanks
Julka

Gosh, that's a long set of questions.

Let's start with the time-limit thing. The short answer is yes and no. OK, that's not helpful. It's not time limited in the sense that there's no overall time limit beyond which you can get it. The government has said that it will bring in a one-month time limit for contributions-based ESA for people in the work related activity group, but this will not affect people on income related ESA.

However, your ESA entitlement can be reassessed with any point. We are getting a lot of people coming on here and saying that they are getting an ESA50 sent to them straight after a tribunal. The DWP can do that if it chooses. Some people are having up to four medicals a year.

You mention descriptors not mentioned at your tribunal. The tribunal is only looking to see whether you have enough points and once they have determined that you do, they won't normally go into any further exploration of whether you might be able to get points for anything else, so it is entirely possible for a tribunal to not mention things you could get points for.

PS I'm not aware of any rule that says that an assessment can't go ahead without the healthcare practitioner seeing your ESA50, but it may be that one of my fellow mods knows of something.

No wonder Gordon's reply appeared after mine - it is far more detailed and helpful.

Hi

Thank you (Survivor and Gordon) both so very much for your extremely helpful responses yesterday. I can’t thank you enough for your help and clarity.

(1) I still don’t understand is how a claimant can be accurately assessed by an atos professional if a medical is insisted upon before they have seen the esa50 and any accompanying medical evidence?

I say this having had the experience of a failed medical but successful appeal last year in which I saw the importance that the Tribunal put on my Esa50 (which the Dwp’s defence had said that they hadn’t had and had only used the atos medical assessment, even though atos had had the Esa50 before the medical).

In my experience, the existence of the Esa50 was hugely important to both exist and to be taken into account. So can an Atos medical really properly go ahead if Atos have not had full sight of the esa50 and accompanying medical evidence beforehand?

(2) Also my understanding (and I stand to be corrected) of the Atos process is that, on their receipt of the Esa50/medical evidence a medically trained person in Atos will initially review (the Atos ‘first stage’) whether a medical is actually needed or not at the outset ie. before a medical date is set.

In these circs and when a claimant becomes projected into having to agree an atos medical appointment date before having returned the Esa50/medical evidence (ie. when the Dwp have agreed to an extension to return the Esa50 but which has the atos medical appointment process running simultaneously), this ‘first stage’ Atos’ professional will not be afforded time to assess whether the medical is actually needed or not, despite that the process employed has already set that medical’s date and it then seems to be a foregone conclusion that the medical will occur in any event (with or without the Esa50/medical evidence).

Are there no clearer guidelines that Atos and the Dwp have to work to here, so that a claimant knows how it is meant to be treated and can flag that to either Atos or the DWP if ever needed?

Thanks