Employment and Support Allowance (ESA)
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TRIBUNAL APPEAL DECISION SAYS ALLOWED BUT UNSURE ON THE NOTES

Hi All :-)
Im A newbie here so bare with me... 
And i apologise for the massive (S.A) in advance....

Going Back to when it all started back in dec,2015.I applied for esa due to numerous things...
This was the 13 week Assessment phase 
And then in the march or around mid march -april 2016...
I went to a atos work capability assessment appointment 
where i was later informed by letter i met the criteria entitlement for the esa to be awarded with the support group for 24 months where ill then be reassessed....

Then april the 5th 2018 (last year) 
i was called to an work capability assessment again following my 24 review from my original award where i was later told by letter i dont meet the criteria for esa work related group nor the support group as i didnt score enough points during the assessment i was found fit for work by the assesser on the day 

i was then told to claim jobseekers or i could ask for a mandatory reconsideration which i did and the dwp didnt change the decision 
So my next option was to appeal this via the HM COURTS &TRIBUNALS SERVICE which i requsted...

So i then had to supply medical certificates each month or two to support my claim in being paid the appeal rate of £73 p/w up untill my pending appeal was heard....

In Dec 2018 roughly 6/7weeks ago i received my appeal date to be heard on the 17th dec 2018 to which i attended and put more to my side across the judge i was told i would hear via letter the same week  which i actually day before christmas eve...

And it says which some reads good news 
and then some im unsure of aswell 
as it was my esa claim overall i was appealing not the groups just my whole claim in general that was disallowed in the april 2018...
The outcome states 
DECISION NOTICE 
1, the appeal is allowed 
2, the decision made by the secretary of state on the 05/04/2018 is set aside 
3, miss ****** has limited capability for work 
4, this is because insufficent points were scored to meet the threshold for the work capability assessment, but regualation 29 of the esa regulations 2008 applied
5, no schedule 3 descriptor applied regualtion 35 of the esa regulations 2008 did not apply.

then furthur down a line or two it says 
   "Any recommendation given below does not form part of the tribunals decision and  is not binding on the secretary of state"

The tribunal recommends that the department does not reassess miss ****** within 24 months from todays date. which was 17/12/2018

Now the confusing part for me is because the appeal allowed and the decision from secretaey of state on tye 05/04/2018 is "set aside" 
does that mean i go back to claim i had before that decision was made to my existing award that im generally appealing?

As it mentions nothing regarding groups etc as it was the award decision i was contesting is that why it says no schedule 3 descriptor applied as it wasnt taking into account which group regualations was scored ? 
I called the dwp who said id been placed into the work related activity group but i was never in this group in the first place if it was to say the appeal is allowed  does that not mean the judge agrees with my side

then voiding the secretary of states decision 
to then me being allowed my existing claim prior the secretary of states decision
i wasnt aware of any group mentioned i thought it was either a
win= my overall original claim allowed
or
lose= my overall original claim disallowed 

are the judges able to place you into a group without the groups being questioned first of all etc 

Any help or guidance will help massively as im struggling to engage with dwp on any of this ive asked them to issue an award letter of my group status but upto yet 5 weeks later ive not received it all i ever get when i call is a promise of a callback with a ridiculous time slot of 3 days then no one does call then i call back it will get escalated to where again they will send a new email to the relevant team which 1 advisor called back and said to write into dwp freepost etc etc as she was unaware of my group status ???
yet they seem to tell me in the work related activity group with no notes how is that possible and where are they reading that from ....
Thank you in advance for any shed of light on this 
Andv
Thank you for taking the time to read 
:-) 

 


Replies

  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    Hi,

    When requesting a Tribunal what you should do is concentrate on which group you think you should be placed into and your reasons why. Concentrating on that alone is always the best option and sending evidence to support your reasons why you should be placed into the group.

    To be placed into either of the groups there's criteria known as the descriptors. When attending a Tribunal hearing they will decide based on your evidence and your answers to the questions on the day what group they will place you into.

    This here "no schedule 3 descriptor applied. regulation 35 of the esa regulations 2008 did not apply". Means that the Support Group descriptors and reg 35 didn't apply to you, so you weren't placed into that group, even though you were previously in that group before you were found fit for work.

    The appeal being allowed means they didn't agree that you're fit for work but agreed that you should be placed into the WRAG, rather than the support group this time. The decision by the Tribunal was this. "this is because insufficent points were scored to meet the threshold for the work capability assessment (which should read WRAG not work capability assessment) , but regualation 29 of the esa regulations 2008 applied" This means that you didn't score any points for the WRAG but were placed into this group through reg 29. Limited capability for work is otherwise known as the WRAG. You will receive the old WRAG rate of approximately £102 per week because your claim started before April 2017.

    Hope this helps.



     

    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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