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ESA PAYMENTS WHILST ON TRIBUNAL RECONSIDERATION

cakey3747cakey3747 Member Posts: 2 Listener
edited September 2017 in PIP, DLA and AA
Can anyone tell me if you will receive ESA payments whilst an appeal has gone to a tribunal for reconsideration ?

Replies

  • steve51steve51 Member Posts: 7,175 Disability Gamechanger
    Hi @cakey3747

    A very big welcome to you to our website/ online community I do hope that we can help you with your current situation/problem.

    I will get one off our Benefits Advisor to help and assist us if that is ok.

     Please please let me know if I can help you further.

    Hi @BenefitsTrainingCo

    Can you please help me with this post.

    Many thanks.
  • BenefitsTrainingCoBenefitsTrainingCo Member Posts: 2,692 Pioneering
    Hello cakey3747

    Firstly the below information is based on the case that an appeal has been lodged to a Tribunal.  If this is not the case and you have lodged a Mandatory Reconsideration it maybe that you have to claim JSA or Universal Credit.

    ESA can be refused if a decision is made that you do not have 'limited capability for work'.   That is ESA have decided that you can work following a medical assessment.

    ESA can also be refused if a person fails to attend a medical assessment or fails to return an ESA50 form to the DWP. 

    If ESA was refused as a person did not attend a medical or did not return a form then ESA cannot be paid pending a decision by a tribunal on your appeal. 

    If ESA was refused because you challenged the decision that you do not have 'limited capability for work', then ESA may be paid pending a tribunal decision on your appeal. However, this only applies if this is the first time that a decision has been made  that you do not have limited capability for work.  As such, if you have had a previous decision to refuse ESA on this basis and you did not successfully challenge this decision then ESA will not be paid. 

    In short if this is the first time that ESA has stopped as you have been found capable of work then ESA should generally be paid whilst you are waiting for a tribunal to make a decision on your appeal. 

    If the above applies to you, then you must send a Fit Note to ESA and ask that they re-instate benefit. 

    I hope the above helps

    Maria
    The Benefits Training Co:
    Paul Bradley
    Michael Chambers
    Will Hadwen
    Sarah Hayle
    Maria Solomon
    David Stickland
  • tommtomm Member Posts: 231 Pioneering
    edited September 2017
    I have read that if you have a NEW or significantly worsened conditon this one time rule doesn't apply  which if you think about  it makes sense 

    https://www.turn2us.org.uk/Benefit-guides/Employment-and-Support-Allowance/Repeat-Claims-of-Employment-and-Support-Allowance#guide-content

  • BenefitsTrainingCoBenefitsTrainingCo Member Posts: 2,692 Pioneering
    tomm,
    If you have a new or significantly worsened condition then yes, it doesn't matter if this isn't the first time you have failed the work capability assessment. The DWP guidance says that 'significantly worsened' means they must now think it's likely you would pass the work capability assessment.

    In this situation, you can either get ESA whilst waiting for the outcome of an appeal, or you could claim again (if your condition has got worse since the decision you're not happy with, I would recommend claiming again, as the tribunal can't consider circumstances which didn't apply at the date of the decision).

    Will
    The Benefits Training Co:
    Paul Bradley
    Michael Chambers
    Will Hadwen
    Sarah Hayle
    Maria Solomon
    David Stickland
  • tommtomm Member Posts: 231 Pioneering

    Getting ESA whilst appealing

    On or after 30 March 2015 if you are appealing against a decision that you have failed  the Work Capability Assessment(WCA), then depending  on the facts, you can still be treated as having limited capability for work and so be entitled to ESA whilst appealing in the following situations;

    • if the WCA failure that you are appealing against is the first such failure (or the first since a previous decision that you passed the WCA),

    • where the WCA failure that you are appealing is the second or subsequent WCA failure and your condition has got significantly worse or you have a new health condition.

    If you are appealing an ESA decision made before 30 March 2015 you can still get ESA whilst appealing, even if you had a second or subsequent WCA failure.

    Suggests different  hence why i asked here

    https://www.turn2us.org.uk/Benefit-guides/Employment-and-Support-Allowance/Repeat-Claims-of-Employment-and-Support-Allowance#guide-content


    Otherwise they are saying that a person can only be entitled to ESA assessment rate whilst appealing  in their lifetime regardless of what health issues they  end upo facing  even if the DWP has accepted they have a valid claim and paid assessment rate , because they have a completely new condition   therefore  a second WCA  should not link in any way to the first  in this scenario



    Read more at https://community.scope.org.uk/discussion/36325/entitlement-to-assessment-rate-esa-during-leave-to-appeal-to-a-tribunal#ROqrkZ6St7mZaTHi.99

  • tommtomm Member Posts: 231 Pioneering
    edited October 2017
    I found that my condition had worsened significantly, only after an up to date x-ray had been taken this was after the tribunal hearing that wasn't found in my favour
    Due to evidence  some of if not being given the weight it deserved (GP's letter) and no specialist input

    So i made a new claim  with a significantly  worsened condition (had evidence) as well as a newly diagnosed condition, i have also reports from specialists one that is helpdul, the other maybe no so helpful

    Which was accepted by the DWP and the claim is in payment , waiting for the farce that is  the WCA which i will likely score zero points which seems to be the norm,

    i don't expect to fare any better at the box-ticking/delaying/ financial hardship causing  MR ,so i will likely have to appeal to tribunal again to stand any chance of being awarded the benefit i should meet the criteria for

  • BenefitsTrainingCoBenefitsTrainingCo Member Posts: 2,692 Pioneering
    Hello tomm

    The rules about reclaiming ESA when waiting for an appeal are tremendously complicated.  You are right that if your condition has got worse you can reclaim ESA.

    I hope your MR is successful.

    Maria

    The Benefits Training Co:
    Paul Bradley
    Michael Chambers
    Will Hadwen
    Sarah Hayle
    Maria Solomon
    David Stickland
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