IB to ESA appeal failed

Hi everyone,
My wife had her appeal last week, unfortunately it failed.
She had scored 0 points originally and had a poor Atos report.
This was before we heard about B&W.
After much researching on the site we went to the appeal well prepared.
The Lady judge was very sympathetic, however the Doctor was not.
He kept reminding us that the appeal was about the evidence at the time of the assessment,even though it was quite obvious from new evidence that my wife's condition is much worse.
When we came back for the decision,the Judge actually said sorry to my wife which really surprised me.
If we had known about B&W earlier it would never have got to the appeal stage.
Can my wife make a new claim at some point?
I have checked out the site but I can't seem to find a clear answer.

Thanks
Phil

I had similar with a War Pension appeal several years ago. The Doctor, former Naval Surgeon, readily agreed my condition was much worse than the percentage I had been awarded. Like in your wife's case he also said that he could only look at how the condition was and reported at the time of my original medically.

I'm not sure but can she not put in a new claim now, if six months have lapsed?

pbs wrote:

Hi everyone,
My wife had her appeal last week, unfortunately it failed.
She had scored 0 points originally and had a poor Atos report.
This was before we heard about B&W.
After much researching on the site we went to the appeal well prepared.
The Lady judge was very sympathetic, however the Doctor was not.
He kept reminding us that the appeal was about the evidence at the time of the assessment,even though it was quite obvious from new evidence that my wife's condition is much worse.
When we came back for the decision,the Judge actually said sorry to my wife which really surprised me.
If we had known about B&W earlier it would never have got to the appeal stage.
Can my wife make a new claim at some point?
I have checked out the site but I can't seem to find a clear answer.

Thanks
Phil

Hi pbs,

I'm sorry to hear that your wife didn't win her appeal.

The Panel Doctor was indeed correct, the tribunal panel will only take into account any facts or evidence that were pertinent at the time of the fit for work decision that you actually appealled.

If it has been 6 months or more since the time of the fit for work decision, then your wife can make a fresh claim for ESA using an ESA1 Form, she will also need a "fit note" (MED 3) from her G.P.

See : www.gov.uk/employment-support-allowance/how-to-claim

If it has not been 6 months or more, then your wife can still make a fresh claim if she can show that her medical conditions have deteriorated, or she now suffers with different medical conditions.

If your wife has been in receipt of Contribution Based ESA at The Assessment Rate whilst appealling, you should take note of this : 12 Month Limit for ESA(CB)

bro58

Hi bro58,
My wife was on Contribution based ESA assessment rate which finished two days before the Appeal hearing.
She had been on it for one year.
Her fit for work decision was before this.
I know she can submit a new claim but I am unsure what the timescale is before she can claim for CBESA.

Thanks
Phil

pbs wrote:

Hi bro58,
My wife was on Contribution based ESA assessment rate which finished two days before the Appeal hearing.
She had been on it for one year.
Her fit for work decision was before this.
I know she can submit a new claim but I am unsure what the timescale is before she can claim for CBESA.

Thanks
Phil

Hi P,

It would seem that your wife has exhausted her 365 day entitlement to CB ESA.

If she was working directly before claiming CB ESA, then there is some chance that she may be entitled to CB ESA, if she has the necessary NI Contributions from that period. (On making a fresh claim after the 12 weeks ESA linking rules)

However, if she was in receipt of other benefits such as IB/IS/SDA and was migrated over to ESA then the only way that she could gain enough NI Contibutions for CB ESA once more, would be through employment. If this is the case, you could make a fresh claim and try to gain access to The SG, in which case she would be entitled to payment. There is no 365 day entitlement limit to payment whilst in The SG, whether it be CB ESA or IR ESA.

If she makes a fresh claim for ESA, and is placed into The WRAG, she would only be entitled to payment if you could pass the means test for IR ESA, see :

Asset rule for ESA(IR)

The same would apply with payments of ESA whilst in the assessment phase when a new claim was made. (Only receive payment if entitled to IR ESA)

Therefore, you could have a scenario where she makes a fresh claim, is placed into The WRAG, but would only receive NI Credits to go towards her State Pension, and no other payments. (if she could not qualify for IR ESA) However, even if she was placed into the WRAG, and only received NI Credits, she would still be liable to the ESA WCA, they would not be able to compel her to take part in WFI's and WRA though.

Have a look at these previous threads regarding gaining enough NI Contributions to reclaim CB ESA :

www.benefitsandwork.co.uk/forum?func=vie...9381&limit=6&start=6

www.benefitsandwork.co.uk/forum?func=view&catid=10&id=78417

This : Benefits Calculator may be helpful.

You may wish to gain professional face to face advice, where they will have access to all your personal details, see :

Where to get advice?

Or Google Welfare Rights/Advice for your Town or Postcode.

bro58