FROM SG TO WRAG 90 DAYS AGO - NOW LOSING BENEFITS!

Gordon wrote:

pilotman

I would ask them to write to you with the periods that they are using towards the 365 days.

My understanding is that the Linking Rules only apply where you have been found to have Limited Capability for Work (e.g. Unfit for Work).

Payments will only be re-instated if you are placed in the Support Group or you can show that you have not been in the WRAG whilst receiving ESA(CB) for more than 365 days.

Good luck

Gordon

By coincidence I was given up a similar case today.

The DWP seem to be saying that with the changes to the linking rules which came into effect on 1st May this year (SI2012/919 refers) that ones claim will now link back 12 weeks (Jan to March in this case) and that one is treated as if having LCW whilst one receives the Assessment Rate prior to the Work Capability Assessment being carried out on the original claim.

I must admit due to other pressures I haven't looked into it in too much depth as yet, but it maybe with the recent changes, the DWP have now linked the previous claim and totalled all the claim days together as one period of Limited Capability for Work to get the exhaustion date of the Contributory WRAG payments.

If I get chance over the next couple of days I will try to delve a bit deeper into the current situation.

Pete

Hi Gordon,

That is exactly what I thought.

However it maybe that the DWP are now taking a new approach on this. Particularly with regards to the linking of previous claims even if one was found fit to work at the subsequent WCA - From my limited view of it so far,it seems regardless of the WCA outcome, if one has been in receipt of Assessment Phase payments, then they are treated as having LCW during this phase for linking purposes. It does then tie in with days in the Assessment phase counting against ones 365 days of WRAG unless one is immediately placed into the SG (Incidentally I am also trying to find out what definition they use for 'immediately'- i.e. post initial Decision or subsequently via means of tribunal etc).

There is also the query (in the case I have been given) of the situation where no ESA50/WCA is actually required to award ESA but I don't want to confuse the issue here.

As I said, I do need to do a bit of research on how these changes to linking can affect cases such as this. With it being so new I sometimes think the DWP play it by ear at times!!

Regards

Pete

Hi Gordon and Pete

I've read your posts with interest. Just by way of an update - my wife got a call back from "them" today and was told the dates they are using for calculation of receipt of CB : they have ignored my time in assessment up to being placed in SG (which was the result of my 2nd claim), but are linking my 1st and 2nd claims quoting the "13 week rule" as the time between my 2 claims was less than 13 weeks. I am obviously frustrated by this news and am wondering at the legality of it - my first claim only had one medical condition in it and whilst in assessment my original condition worsened and I also by then had new medical conditions, so on failure of my 1st claim I started the appeal process, but a few weeks later decided this was futile as I had new med conds and would be better putting in a new claim. They stopped my basic rate CB ESA I rec'd whilst appealing once the 2nd claim was received, and I immediately received the assessment rate for the 2nd claim - they say my 2 claims were 1 day apart (they were - the day they cancelled my appeal money and gave me assessment money) but from the actual date of being found fit for work to putting in my 2nd claim was 107 days - therefore, they've counted my days on appeal as part of the first claim (which I presume they're entitled to do?)
I look forward to reading your posts following your further investigations into this. I may wait to read your comments before I write my complaint letter as then I will understand the linking rules more fully. We live in hope that they have used them wrongly in my case. Thanks again.

Gordon and Pete

A thought sprang to mind - if they are allowed to count the time spent in the appeal phase as "Limited Cap for Work" straight after a "medical" that found me "Fit for Work" (as they have with me) then surely they are contradicting their own decision, which hardly seems legal? They find me FFW one day and literally the next day, because I utter the magic word "appeal", they then class me as "unfit for work" and count the whole time in that claim and appeal process towards my 365 days! If they weren't allowed to count this time on appeal then the actual time from being found FFW and putting in a new claim is 106 days, and they wouldn't be able to link them. They seem to be having their cake and eating it ....

By the way when my wife spoke to someone last week following a call back (as previously posted) they talked about the 13 week rule to her - so as it's really the 12 week rule it shows that they can't even get the basic information correct! What hope have we got with more complicated aspects then?

Frustrated and desperate - but then aren't we all!

pilotman wrote:

Duncan and Pete

A thought sprang to mind - if they are allowed to count the time spent in the appeal phase as "Limited Cap for Work" straight after a "medical" that found me "Fit for Work" (as they have with me) then surely they are contradicting their own decision, which hardly seems legal? They find me FFW one day and literally the next day, because I utter the magic word "appeal", they then class me as "unfit for work" and count the whole time in that claim and appeal process towards my 365 days! If they weren't allowed to count this time on appeal then the actual time from being found FFW and putting in a new claim is 106 days, and they wouldn't be able to link them. They seem to be having their cake and eating it ....

By the way when my wife spoke to someone last week following a call back (as previously posted) they talked about the 13 week rule to her - so as it's really the 12 week rule it shows that they can't even get the basic information correct! What hope have we got with more complicated aspects then?

Frustrated and desperate - but then aren't we all!

Hi,

Albeit I'm not a solicitor, to use the legalese term the DWP use, they 'treat' someone as having 'a limited capability for work' if after the medical (which although found you as claimant fit) the claimant both appeals the decision the decision and supplies sick notes, in order to claim ESA Assessment Rate (as the law allows) pending an appeal. It is the same prior to the Medical in so much as they treat one as having a limited capability for work prior to the decision on the claim being made in order to pay one Assessment Phase ESA.

Their stance being that by asking for an appeal and submitting sick notes, they are obligated to treat the claimant as having this limited capability for work in order to pay the ESA Assessment Rate. If they didn't treat a claimant as having this limited capability for work (either pending appeal or before a decision is made on a new claim) it would in effect be illegal to pay to this ESA Assessment rate money as there is no entitlement.

Hence this period of time whilst assessment phase is paid is counted towards the 365 days of WRAG payments.

I can see where you are coming from with your argument, but doubt it would hold up because the Assessment Rate was paid for that period. Whether or not that should link to the current claim is i think the nub of the argument in my view.

Pete