Employment and Support Allowance (ESA)
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DWP going against Tribunal

Hi I won my Tribunal appeal for ESA support and today I received phone call asking me to go in local job centre for assessment they say I have been put in work Group and not had my ESA support group reinstated can they do this after Tribunal win

Replies

  • nutsvillenutsville Member Posts: 10 Listener
    I think I have posted in wrong category I’m new to this someone please advise me where I should be posting
  • Pippa_ScopePippa_Scope Member Posts: 5,856 Disability Gamechanger
    Hi @nutsville, and welcome! I've moved this particular post to Ask a Benefits Advisor as they will be the best placed to advise you with this: somebody will hopefully be in touch soon!
  • tommtomm Member Posts: 231 Pioneering
    If you were awarded  the support group  (LCWRA) by the tribunal  then that decision will stand untill  you are re assessed  (WCA) Sounds like someone has got their wires crossed somewhere maybe,  Have you got the decision notice from the tribunal service? it will say which group  they have awarded  you,

    it will be treated as having  LCW (limited capability for work )= Work related activity group
    or Treated as having  LCWRA( Limited capability for work related activity ) = support group
    If you are in the SG then they cannot mandate you to attend any assessment  for WRA , this web page gives their official info https://www.gov.uk/employment-support-allowance/what-youll-get

  • BenefitsTrainingCoBenefitsTrainingCo Member Posts: 2,692 Pioneering

    Hi @nutsville

    Strictly speaking, the Tribunal do not have the power to enforce a decision on the DWP, however I very very very much doubt that what is going on here is a deliberate move on the part of the DWP to go against the decision, there would have to be some extraordinarily compelling reason for them to do so, as you are very likely to lodge a formal complaint.

    On that note, what I would recommend is calling the DWP and asking for a callback to explain what is going on (don't expect the person who answers the phone to be able to explain it, just calmly explain that there seems to be some confusion on your claim that needs clearing up etc), and if the person who calls you back does not explain to your satisfaction that you are being placed in the Support Group, then lodge a formal complaint in writing.

    The only exception to the above, is if we are talking about a scenario where your health has improved for some reason. If this is the case then the Tribunal's decision would only be good as regards the DWP decision date is referred to. arrears would have to be paid, but if a relevant change had occurred it would be legitimate to reassess.

    Hope this helps!

    Kind regards,

    Mary

    The Benefits Training Co:
    Paul Bradley
    Michael Chambers
    Will Hadwen
    Sarah Hayle
    Maria Solomon
    David Stickland
  • nutsvillenutsville Member Posts: 10 Listener
    Hi thank you for reply, I can't see what group the Trubunal said I should be in, as I say I was in support group before, I got 6 points from Work Assessment Medical, trubunal awarded me 18, I'm confused why I have been put in Work Group, my awarded is for Agrophibia my physical conditions were ignored.
    Where in trubunal letter would it say if they were in favour of my staying in the support group.
    i had a representative help with my appeal, she did not even notice I was put in Work Group, she sent me the tribunal letter saying I had won, and would be left in peace for 2 years, but no had phone call from DWP saying I had to go to work focus interview, I was completely shocked and asked why when she said because your jn Work Group.
    please if you can explain I would be very grateful, sorry message is so long
    kindest regards
  • BenefitsTrainingCoBenefitsTrainingCo Member Posts: 2,692 Pioneering

    Hi @nutsville

    Apologies, as I had slightly misunderstood you last time, I thought the Tribunal had awarded Support Group, but the DWP were not applying this.

    On the Tribunal decision, if the descriptors are all from Schedule 2, and there's no mention of Reg 35, then this is a WRAG decision. If there are Schedule 3 descriptors and/or reg 35, then this is Support Group.

    If the Tribunal have placed you in WRAG then it would either be a case of challenging this to the Upper Tribunal (if an error of law was made in failing to consider Support Group) or asking ESA to look at your claim afresh.

    Really if you had a representative they need to be looking at whether the Tribunal erred in law, or at least advising you as to why they think not - they will have identified in their submission what descriptors they felt should apply, so if the Tribunal have not awarded those then they need to understand why - and make further challenge if necessary.

    The first stage in seeing if a decision of the Tribunal can be challenged further is to request a Statement of Reasons and Record of Proceedings from them. From the date of the hearing you only have one month to do this - so any action you are going to take re further appeal needs to be taken quickly. If you are outside the month you could still try requesting the Statement of Reasons, but you would need to offer a decent explanation as to why it ha taken longer than a month to request - in this instance it may suffice that you were under the impression you had been awarded SG and only recently discovered this was not the case.

    Get back in touch with your rep, or if not, request the Statement yourself in the meantime - the Tribunal Services' email is normally on their letter, you can email them a request.

    Let us know if you need more pointers with this!

    Unfortunately, if the Tribunal did award WRAG, until any further action (either further appeal or further review) you are stuck with the conditionality this entails. On this note, I would recommend contacting whoever at the jobcentre is dealing with you, explaining the position, and asking if they can deal with you over the phone - worst they can say is no...

    Keep us posted!

    Kind regards,

    Mary

    The Benefits Training Co:
    Paul Bradley
    Michael Chambers
    Will Hadwen
    Sarah Hayle
    Maria Solomon
    David Stickland
  • nutsvillenutsville Member Posts: 10 Listener
    Thank you for the information, I spoke to Job Centre they said a telephone work focus interview would be done, I received a letter with date and on it it said telephone interview, on the day I was waiting it was for 12.30 I had not received call so I rang and the person whose name was in the letter answered, she said I was supposed to have gone to JC I explained what it said in letter Tele interview, she said there was nothing on her screen and she had been calling my name in the JB for the last 10minutes, she said she would call me back, she did and said they never do Tele interview, the person I originally spoke to had got it wrong and that I would have to go JC I argued it was hard because if my Agrophibia, she asked various questions how did I get to work capability for ESA I explained I was ill for about 2 weeks before and 2 weeks after, she asked if I ever went out and what affect it has on me when I do I answered all her questions, I then said I was also a carer for my daughter, she said she would talk to her colleagues and phone me back end of the day, this she did she said because I was a carer I would not have to attend work focus interviews, I ask for it in writing she said no, but she had seen for herself in black and white that as I carer I was exempt, then she went in to say that being a carer they call you in to JB I said I had been a carer for many years and had not been called in, can they do this? Do I have to attend? 
    Sorry this is so long, also it has been quite a while since my trubunal, and it makes me so I'll so I will leave it but I am extremely angry, upset and annoyed that my Rep did not notice the Tribunal had placed me in the Work Group, a lesson learnt always check the outcome is the right one.
    Once again many thanks for your input
  • BenefitsTrainingCoBenefitsTrainingCo Member Posts: 2,692 Pioneering
    edited February 2018
    Hi nutsville,

    Even being a carer does not exempt you from an appointment at the jobcentre if you are on ESA work-related. They don't (or shouldn't) expect much from carers and it should only really be infrequent contact but it can still happen and it is only really a tick box exercise for them - to show that they have given you some support, even if they haven't really because your circumstances are such that you aren't available for work anyway.
    Your tribunal decision will say, in the first sentence or two, whether your ESA decision includes the work-related activity group or the support group.
    Do you receive Carer's Allowance. Maybe you could consider claiming Income Support instead of ESA IR and the pressure from the jobcentre will not be as great.
    Jobcentres can and do telephone interviews, but it very much at their discretion whether they do so or not. To avoid all this, and if your tribunal decision states "work-related activity" you'll need to do as previously advised, request statement of reasons and try to find an error in law to get another chance of being put in the support group.
    If the jobcentre have previously offered you a telephone interview and are now saying you can't have one, this is really unacceptable and you should complain to the manager. All the best!


    Lee
    The Benefits Training Co:
    Paul Bradley
    Michael Chambers
    Will Hadwen
    Sarah Hayle
    Maria Solomon
    David Stickland
  • Egallon1Egallon1 Member Posts: 7 Connected
    Hi
    I have received my First Tier Tribunal letter today which states that my appeal has been allowed. It says I have limited capability for work and am significantly limited.

    I am abit confused about a couple of parts mentioned in the letter, any help would be gratefully received.

    1. In applying the Work Capability Assessment 18 points were scored from the activities and descriptors in Schedule 2. Then a breakdown of points.

    2. No Schedule 3 descriptor applied. Regulation 35 of the ESA Regulations 2008 did not apply.

    There is also no mention of which group I will be in.
    I hope someone can help with an explanation.

    Many thanks


  • hassanhassan Member Posts: 1 Listener
    Hi Egallon1
    they put you in support Group
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    hassan said:
    Hi Egallon1
    they put you in support Group
    Hi,

    This is an old thread from 2018 but your advice is incorrect. Limited capability for work isn't support group, it's WRAG. Limited capability for work related acitivity is support group and this here No Schedule 3 descriptor applied. Regulation 35 of the ESA Regulations 2008 did not apply, means it didn't apply.

    Community champion and proud winner of the 2019 empowering others award. This award was given for supporting disabled people and their families for the benefit advice i have given to members here on the community.
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