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Help Needed with ESA Appeals Nighmare
- Timothy
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2 years 7 months ago #270710 by Timothy
Help Needed with ESA Appeals Nighmare was created by Timothy
Hello Folks
I need help with an unbelievable ESA appeal which has been ongoing since 2017. I shall give a very brief outline below but what I want to know is, can I claim my full LCWRG back payments from 2017 until my next (second attempt) First Tier Tribunal coming this June as there was an error in law at the First Tier Tribunal hearing in 2018 and I’ve only been paid LCW? rate for the past 4 ½ years which is of course vastly reduced.
BRIEF SUMMARY:
In Support group (or LCWRA) for numerous years due to degenerative and constantly worsening conditions caused by a serious industrial spinal injury. Every medical that I attended over years I acquired more points as my conditions were getting worse and I always passed the medicals. Then this happened…… (and this is the short version) …
November 2017 Medical Assessment (Actual DWP Medical)
December 2017 Result of Medical Assessment (Failed 0 Points) Original Benefits stopped and put on LCW? and paid virtually nothing.
December 2017 Mandatory Reconsideration Application
January 2018 Mandatory Reconsideration Reply (Failed of course)
February 2018 First Tier Tribunal Application
December 2018 First Tier Tribunal (Won and told I would go back on LCWRA and back-paid)
December 2018 DWP Stated on the telephone that I hadn’t won and was still placed in LCW? at the VASTLY reduced rate. They also stated that "They'd" have to back pay me too much if "they" put me back in the LCWRA.
Early 2019 Upper Tier Tribunal Application which was accepted.
March 2022 Upper Tier Tribunal Response (which was that the First Tier Tribunal erred on the law) the Upper Tier Tribunal could not make a decision so have sent me for another First Tier Tribunal on…..
June 2022 First Tier Tribunal Re-trial
So, just to reiterate, as there was an error in Law at the First Tier Tribunal in 2018, can I claim back my original LCWRA benefits to when the DWP first failed me in 2017 until the outcome of the next First Tier Tribunal this coming June?.
Thank you in advance for any help.
I need help with an unbelievable ESA appeal which has been ongoing since 2017. I shall give a very brief outline below but what I want to know is, can I claim my full LCWRG back payments from 2017 until my next (second attempt) First Tier Tribunal coming this June as there was an error in law at the First Tier Tribunal hearing in 2018 and I’ve only been paid LCW? rate for the past 4 ½ years which is of course vastly reduced.
BRIEF SUMMARY:
In Support group (or LCWRA) for numerous years due to degenerative and constantly worsening conditions caused by a serious industrial spinal injury. Every medical that I attended over years I acquired more points as my conditions were getting worse and I always passed the medicals. Then this happened…… (and this is the short version) …
November 2017 Medical Assessment (Actual DWP Medical)
December 2017 Result of Medical Assessment (Failed 0 Points) Original Benefits stopped and put on LCW? and paid virtually nothing.
December 2017 Mandatory Reconsideration Application
January 2018 Mandatory Reconsideration Reply (Failed of course)
February 2018 First Tier Tribunal Application
December 2018 First Tier Tribunal (Won and told I would go back on LCWRA and back-paid)
December 2018 DWP Stated on the telephone that I hadn’t won and was still placed in LCW? at the VASTLY reduced rate. They also stated that "They'd" have to back pay me too much if "they" put me back in the LCWRA.
Early 2019 Upper Tier Tribunal Application which was accepted.
March 2022 Upper Tier Tribunal Response (which was that the First Tier Tribunal erred on the law) the Upper Tier Tribunal could not make a decision so have sent me for another First Tier Tribunal on…..
June 2022 First Tier Tribunal Re-trial
So, just to reiterate, as there was an error in Law at the First Tier Tribunal in 2018, can I claim back my original LCWRA benefits to when the DWP first failed me in 2017 until the outcome of the next First Tier Tribunal this coming June?.
Thank you in advance for any help.
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- LL26
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2 years 7 months ago #270732 by LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by LL26 on topic Help Needed with ESA Appeals Nighmare
Hi Timothy,
When you get a decision from the Upper Tribunal saying a fresh tribunal is required it is like starting from the beginning. Its a bit like what happens in cricket. Bowler thinks he has got the batsman out, as there is a catch. The batsman appeals. Video ref will then check everything and if he agrees that the batsman never hit the ball, as a result the batsman can not be out, and things will go back to where they were before the catch.
It is exactly the same with a new hearing. New tribunal members, who start again from the point immediate before the start of the first (legally erroneous) tribunal hearing.
The new tribunal start again, but if they allow your appeal then you will be awarded backdated benefit commencing from the time of the decision made that removed your benefit. So, if your appeal is agreed it will be like you were always on the same level of benefit with no gap. You will get back dated benefits which will include any premiums if applicable.
I suggest that you may wish to go through the reasons that the UT judge provided. Do you need to counter any if the arguments? Be aware that the new tribunal will be aware of the UT judgment but may not be aware of all the paperwork and arguments as this is often not sent to the second tribunal.
Think hiw you can evidence the reasoning of the UT judge.
Let us know if you need more help.
Good luck
LL26
When you get a decision from the Upper Tribunal saying a fresh tribunal is required it is like starting from the beginning. Its a bit like what happens in cricket. Bowler thinks he has got the batsman out, as there is a catch. The batsman appeals. Video ref will then check everything and if he agrees that the batsman never hit the ball, as a result the batsman can not be out, and things will go back to where they were before the catch.
It is exactly the same with a new hearing. New tribunal members, who start again from the point immediate before the start of the first (legally erroneous) tribunal hearing.
The new tribunal start again, but if they allow your appeal then you will be awarded backdated benefit commencing from the time of the decision made that removed your benefit. So, if your appeal is agreed it will be like you were always on the same level of benefit with no gap. You will get back dated benefits which will include any premiums if applicable.
I suggest that you may wish to go through the reasons that the UT judge provided. Do you need to counter any if the arguments? Be aware that the new tribunal will be aware of the UT judgment but may not be aware of all the paperwork and arguments as this is often not sent to the second tribunal.
Think hiw you can evidence the reasoning of the UT judge.
Let us know if you need more help.
Good luck
LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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- Timothy
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2 years 4 months ago #273504 by Timothy
Replied by Timothy on topic Help Needed with ESA Appeals Nighmare
Thank you very much for the above information. I'm sorry about the late "Thanks" but I've been really ill with Covid (again). I now have a new FT Tribunal date in October. Would you know who I would/should/could contact about attempting to get my original benefit backdated/re-instated until the next Tribunal in October?. Thank you in advance for any help.
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- BIS
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2 years 4 months ago #273514 by BIS
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Replied by BIS on topic Help Needed with ESA Appeals Nighmare
Hi Timothy
Sorry to hear that you have had Covid "again". Unfortunately, there is nothing you can do about your benefits until the Tribunal hearing. As you say this is a nightmare, but should you win it will be backdated right back to the beginning. And the person who told you that the DWP can't pay that much money is talking rubbish. It's not much help in your current situation - I know. I hope this is resolved in your favour.
BIS
Sorry to hear that you have had Covid "again". Unfortunately, there is nothing you can do about your benefits until the Tribunal hearing. As you say this is a nightmare, but should you win it will be backdated right back to the beginning. And the person who told you that the DWP can't pay that much money is talking rubbish. It's not much help in your current situation - I know. I hope this is resolved in your favour.
BIS
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- Timothy
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2 years 3 months ago #274197 by Timothy
Replied by Timothy on topic Help Needed with ESA Appeals Nighmare
Hi Folks
I have my new (second) FTT date for next Tuesday Oct 18th. This whole process has taken 5 years from failing the DWP medical to now. Can anyone please help me with a couple of questions. The first one is this, I read somewhere that when the DWP send their representative along to the FTT that they are not allowed to be in the room on their own with the appeal panel, is this correct?.
The second question is this, I read on another forum somewhere that someone had the identical problem to myself (and apparently it happens a lot!). The person went for his FTT appeal and like myself the Judge told him that “He’d won the appeal, he would go back on what he was on before (LCWRA although that wasn’t stated) and any monies backdated to him”. Although scoring over 20 points (I scored 24 points) the person in question was, like myself, put into the LCW and not into the LCWRA. So, although we both scored over 24 points is it the judges discretion/decision whether we go onto LCWRA because as far as I can tell there’s no points that can be scored for LCRWA, just descriptors?.
It seems there’s two “tests” during the FTT appeal process which appears to be the same as the WCA test, one where you score points and the second where you don’t:
(The below is cut and pasted from the newcastle.gov.uk/welfarerights site)
First Test:
The Activities, descriptors and their points:
To be assessed as having limited capability for work you need to score 15 or more from a total of the two tables below. Add together the highest score from each activity 1 to 17.
Even if you do not score enough points, you can be treated as having done so (i.e. have ‘limited capability for work’). The reasons are listed below this table.
Second Test:
The limited capability for work related activity (LCWRA) test:[/i]
This second test determines whether you are placed in the ESA Support Group and get the ESA support group component or for UC, get the limited capability for work related activity element. And for ESA and UC have no work-related activity.
You only have to satisfy one of the descriptors
Even if you do not satisfy any of the descriptors, you can still be treated as satisfying them (i.e. have ‘limited capability for work related activity’). The reasons are listed below this table.[/i]
(I can't turn the italics off now) So, again, even though the judge at the FTT has awarded over 20 points is it his decision whether you meet any of the descriptors in the second test (which relate to regulations 29 & 35 I assume) and then you’re placed back in the support group?
Thanks in advance for any help on this and if there’s answers to this on this website I couldn’t find them so apologies for that.
I have my new (second) FTT date for next Tuesday Oct 18th. This whole process has taken 5 years from failing the DWP medical to now. Can anyone please help me with a couple of questions. The first one is this, I read somewhere that when the DWP send their representative along to the FTT that they are not allowed to be in the room on their own with the appeal panel, is this correct?.
The second question is this, I read on another forum somewhere that someone had the identical problem to myself (and apparently it happens a lot!). The person went for his FTT appeal and like myself the Judge told him that “He’d won the appeal, he would go back on what he was on before (LCWRA although that wasn’t stated) and any monies backdated to him”. Although scoring over 20 points (I scored 24 points) the person in question was, like myself, put into the LCW and not into the LCWRA. So, although we both scored over 24 points is it the judges discretion/decision whether we go onto LCWRA because as far as I can tell there’s no points that can be scored for LCRWA, just descriptors?.
It seems there’s two “tests” during the FTT appeal process which appears to be the same as the WCA test, one where you score points and the second where you don’t:
(The below is cut and pasted from the newcastle.gov.uk/welfarerights site)
First Test:
The Activities, descriptors and their points:
To be assessed as having limited capability for work you need to score 15 or more from a total of the two tables below. Add together the highest score from each activity 1 to 17.
Even if you do not score enough points, you can be treated as having done so (i.e. have ‘limited capability for work’). The reasons are listed below this table.
Second Test:
The limited capability for work related activity (LCWRA) test:[/i]
This second test determines whether you are placed in the ESA Support Group and get the ESA support group component or for UC, get the limited capability for work related activity element. And for ESA and UC have no work-related activity.
You only have to satisfy one of the descriptors
Even if you do not satisfy any of the descriptors, you can still be treated as satisfying them (i.e. have ‘limited capability for work related activity’). The reasons are listed below this table.[/i]
(I can't turn the italics off now) So, again, even though the judge at the FTT has awarded over 20 points is it his decision whether you meet any of the descriptors in the second test (which relate to regulations 29 & 35 I assume) and then you’re placed back in the support group?
Thanks in advance for any help on this and if there’s answers to this on this website I couldn’t find them so apologies for that.
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- Gary
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2 years 3 months ago #274230 by Gary
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Replied by Gary on topic Help Needed with ESA Appeals Nighmare
Hi Timothy
Whenever I have been to a Tribunal and DWP representative is attending they are outside the chamber until the Tribunal calls everyone in.
In answer to your second question, you are correct, there are two parts to claiming WCA.
The first part looks at whether you have 'limited capability for work' (LCW)
The second part looks at whether you have a 'limited capability for work related activity' (LCWRA)
1) Limited Capability for Work
Assessment to help determine benefit entitlement based on the extent to which a claimant’s health condition or disability affects their capability for work
2) Limited Capability for Work-Related Activity
Assessment to help determine whether the claimant can be placed in the Support Group because the effect of their condition is so severe that it would be unreasonable to expect them to engage in work-related activity.
You will be found to have limited capability for work and work-related activity if:
* at least one of the LCWRA descriptors applies to you for the majority of the time or on the majority of the occasions that you try to carry out the activity;
* your capability for work and work-related activity is limited; and
* it is not reasonable for you to carry out the activity.
To be assessed as having a limited capability for work, you need to score 15 points or more. Add together the highest score from each activity that applies to you.
The following criterion can only be considered once it has been determined that the claimant has not scored fifteen or more points against the schedule 2 descriptors (limited capability for work), and/or they have not scored against one or more of the schedule 3 descriptors (limited capability for work and work-related activity).
* if, because of a specific health condition or disability, the physical or mental health of the claimant or anybody else would be at risk if they were not found to have limited capability for work-related activity
In order to qualify for the Support/LCWRA Group you need to;
* meet one or more of the relevant descriptors, or
* meet one of the associated Exceptional Circumstances rules.
The Support/LCWRA Group descriptors and the Exceptional Circumstances are listed in the Claiming ESA guides in the members area.
Gary
Whenever I have been to a Tribunal and DWP representative is attending they are outside the chamber until the Tribunal calls everyone in.
In answer to your second question, you are correct, there are two parts to claiming WCA.
The first part looks at whether you have 'limited capability for work' (LCW)
The second part looks at whether you have a 'limited capability for work related activity' (LCWRA)
1) Limited Capability for Work
Assessment to help determine benefit entitlement based on the extent to which a claimant’s health condition or disability affects their capability for work
2) Limited Capability for Work-Related Activity
Assessment to help determine whether the claimant can be placed in the Support Group because the effect of their condition is so severe that it would be unreasonable to expect them to engage in work-related activity.
You will be found to have limited capability for work and work-related activity if:
* at least one of the LCWRA descriptors applies to you for the majority of the time or on the majority of the occasions that you try to carry out the activity;
* your capability for work and work-related activity is limited; and
* it is not reasonable for you to carry out the activity.
To be assessed as having a limited capability for work, you need to score 15 points or more. Add together the highest score from each activity that applies to you.
The following criterion can only be considered once it has been determined that the claimant has not scored fifteen or more points against the schedule 2 descriptors (limited capability for work), and/or they have not scored against one or more of the schedule 3 descriptors (limited capability for work and work-related activity).
* if, because of a specific health condition or disability, the physical or mental health of the claimant or anybody else would be at risk if they were not found to have limited capability for work-related activity
In order to qualify for the Support/LCWRA Group you need to;
* meet one or more of the relevant descriptors, or
* meet one of the associated Exceptional Circumstances rules.
The Support/LCWRA Group descriptors and the Exceptional Circumstances are listed in the Claiming ESA guides in the members area.
Gary
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