Best next step advice please...

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

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

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