ESA troubles - help needed

Fairplay43

Hello everyone. Following an ATOS Assessment in March, my adult daughter, who has numerous serious medical conditions, received a text message from DWP saying she no longer needed to send Fit notes in from her GP. She was subsequently taken off ESA in May. As she had no income from any source, she was forced to claim JSA, when she really she was far too poorly to be looking for work, as she had just been diagnosed with a serious life changing Auto Immune Disease. We asked the DWP to look at the decision again but the decision was unchanged. We then asked for a Mandatory Reconsideration which again was not changed. The GP was so concerned about my daughters well being, she issued new Fit notes, & my daughter re-applied for ESA with her new medical condition. The DWP accepted this, but paid her at a reduced rate. We asked for an oral Appeal, but before the appeal was heard, the DWP partially revised their decision, saying it was favourable, which it was not, & the appeal lapsed. We said we did not accept their decision & that we wanted the Appeal to continue, but first we had to wait for them to send us a Reconsideration Notice (not a MRN) We sent this back with additional information, but had to start a fresh Appeal. The DWP have now done exactly the same again. They have partially revised their decision, but we are still not happy with it, as it is only for 18 months, with the information that she is to be re-assessed in September 2018. Four weeks ago, my daughter had an operation under a general anaesthetic which should have taken 30 minutes. It took four hours, during which time another surgeon had to be called to assist, as the main alveolar nerve in her mouth was severed, resulting in permanent nerve damage. She will never be the same again, and is in agonising pain 24.7. She cant even drink a glass of water without dribbling. The DWP seem hell bent on preventing us going to a face to face appeal. I have told the HMCTS we want to continue with the appeal, but it appears because once again the DWP say the decision is favourable, our appeal may lapse for the second time, even though the two appeals are now linked together. Is there any way we can INSIST on this case being dealt with by HMCTS, or do the DWP keep getting away with this indefinitely. Any advice would be very welcome thank you.

CockneyRebel

Hello Fairplay and welcome

So sorry you are having to deal with all of this and I am sorry for your daughter also, she is having a torrid time
 
There is plenty of info on here about appeals, please have a look around.

When you first appealed to the tribunal, did you get a letter confirming that your appeal had been accepted ?
Did you then receive a bundle of paperwork from the DWP containing all the evidence ?
When you appeal to the tribunal it is your decision whether to lapse your appeal not the DWP. Even if they make you a favourable offer you do not have to accept it and can continue to the tribunal hearing.

If as you say the two appeals are linked and you haven't withdraw them, you can ring the Tribunal clerk for an update.

Once you have an appeal accepted  you should only deal with the tribunal and not the DWP 

CR

Debbie_Alumni

Hi @Fairplay43,

Welcome to the community and thanks for calling the helpline today.

Keep up the good work and let's see what the judge says when they read your letter. Please keep us posted on progress.

Best wishes
Debbie

BenefitsTrainingCo

Hi Fairplay43,

The DWP will lapse an appeal if they feel that their new decision is favourable to you, even if it is only slightly favourable. This means they will send out this favourable decision in writing to you, but that decision is also appealable as well if it is not to your satisfaction, so in theory any decision they make that carries a right of appeal can in the end get to a tribunal if you want it to. Good luck!

Lee

Fairplay43

Thank you for replying to my post everyone. Not sure if I am posting my response in the right place as I have 3 replies, but only one space put my answers. Thanks CockneyRebel for your helpful response about the appeal. After taking  telephone advice from HMCTS, I sent a letter to their processing team yesterday, enclosing a letter to the Judge explaining what has happened, so that he/she can give directions as to the best way to proceed to an oral hearing. I have learnt a lot about how devious the DWP are, & I was advised to bring all their delaying tactics & downright lies to the attention of the Judge. Thanks also to Debbie_Scope for taking the time to give me advice. I will keep you updated. Finally thank you to Lee. I have notified HMCTS in writing that we wish to continue with the appeal, & they have said that they will advise the DWP that we wish to continue to an oral appeal.

BenefitsTrainingCo

Fairplay43,

If I've understood it correctly, the problem with the decision now is the length of the award. So all evidence you have about your daughter's condition and what the doctors have said will be relevant. I'm just worried that you say the operation was four weeks ago. If the second decision you are appealing against is the ESA decision on the second claim, then I think the operation happened after the second claim? Unfortunately, the tribunal won't be able to look at any changes of circumstances which happened after the date of the decisions that you are appealing. 

 I'm worried that your appeal won't get to consider the changed circumstances since the operation, because both decisions you're appealing against happened before it. I would make sure that you've informed the DWP about the changed circumstances (I'm sure you have). You really need a decision from them based on your daughter's circumstances now, if you haven't already got one.

If the tribunal decision is successful for your daughter, then you'll need to tell the DWP that the decision is still relevant, even though her circumstances have changed since.

I'm really sorry about the complications, but it's important to understand what the tribunal can and cannot do. I hope that you get through this with the correct award.

Will

Fairplay43

Thank you Will. I am quite confident that my daughter fulfilled all the criteria to be on ESA in the first place, & that the DWP were in the wrong in May to have taken her off it following the flawed assessment. Her mental health condition has always been precarious & the DWP just ignored all the evidence provided. She has many other conditions too that had deteriorated, but they were all dismissed, despite hospital test results & diagnosis letters being sent in. It's been a total nightmare. I think we shall now just have to wait & see what happens at the Appeal, but I will let you know.