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2 years 6 days ago #276160 by TIgress
ESA Appeal was created by TIgress
Hello.
My husband has been on ESA since last February. He is normally self-employed but had a bad fall which resulted in injuries requiring surgery. We had to appeal as the DWP stopped his ESA after a telephone assessment, despite the fact he had no use in his right arm and was in constant pain. He was offered an appeal date in November but this had to be cancelled as it was literally the day after the proposed date of his operation (ironically the op was cancelled by the hospital two days beforehand due to staff shortages but eventually went ahead just before Christmas).
He has not been given a new appeal date. We have been told his ESA will end at the beginning of March as he will have been receiving it for 12 months. In the appeal, I have requested that he should be put in the Support Group, as we have been told IF his operation is successful the recovery time is at least 6 months. (There is a significant risk it will not have been successful due to the nature of the injury and the length of time he had to wait for surgery due to NHS waiting lists). I should add my husband will reach retirement age in October.
I contacted the court as I am concerned the appeal will not be heard before his claim ends. A judge ruled that there were not sufficient grounds for the appeal to be heard urgently since it is on the list to be scheduled. The reply suggested we should contact Citizen's Advice should he not get a date before the claim ends.
Is there anything else we can do?
Thanks in advance.

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2 years 5 days ago #276187 by Gordon
Replied by Gordon on topic ESA Appeal
TIgress

I would certainly contact your local Citizens Advice clinic or other Welfare Rights office, although I suspect that there is little that they can do having already been turned down for an urgent appeal.

I am concerned from your description of your husband's condition, as to how you are presenting these in his appeal. ESA has very specific requirements and he will only be placed in the SG if he meets these. As an example, his right arm being currently out of use is unlikely to meet the SG criteria if he still has use of his left arm, even if his right arm is the dominant one.

So, in addition to speaking to an advisor about the possibility of getting the appeal listed before his ESA payments end, you should also ask for help in preparing a submission to the appeal.

The ESA criteria is explained in our ESA/UC Claim guide, follow the links from the Guides link above.

Gordon

Nothing on this board constitutes legal advice - always consult a professional about specific problems

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2 years 5 days ago #276209 by TIgress
Replied by TIgress on topic ESA Appeal
Hello Gordon,
Many thanks for your reply.
I am aware of the criteria for ESA SG and the fact that only having the use of one arm does not necessarily meet them. However, my husband is in a level of pain (still, even after the operation) which would render it impossible for him to work. The surgeon has given a recovery time of at least 6 months and as I mentioned my husband will be 66 in October so it all seems bit ridiculous really.
We made an application for PIP as a result of his condition which was successful (I know the criteria are different but to give you some idea as to how badly he is affected).
Thanks again-I will try and speak to CAB about the date of the appeal, although as you say I doubt there will be much they can do to help in that respect. I was really just wondering what the legal position is if the claim expires and the appeal has still not been heard.

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2 years 4 days ago #276225 by Gary
Replied by Gary on topic ESA Appeal
Hi TIgress

In regards to your question 'what the legal position is if the claim expires and the appeal has not been heard'

If the appeal is successful the the claim will be backdated to the date of the decision, then ongoing depending on what the tribunal award. You need to keep a note of this date as you may not receive a reminder from the DWP as it is a tribunal decision.

Gary

Nothing on this board constitutes legal advice - always consult a professional about specific problems
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2 years 4 days ago #276228 by TIgress
Replied by TIgress on topic ESA Appeal
OK I understand, many thanks for that Gary.

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2 years 4 days ago #276231 by Gordon
Replied by Gordon on topic ESA Appeal
TIgress

If you are trying to qualify through the Exceptional Circumstances Regulations rather than meeting one of the SG Descriptors then be aware, being unable to work will only result in a WRAG (LCW) award, to be placed in the SG you will need to show that your husband is unable to carry out Work Ralted Activity.

Gordon

Nothing on this board constitutes legal advice - always consult a professional about specific problems
The following user(s) said Thank You: TIgress

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