tribunal win but baffled

godsend

Hi All,

DWP has baffled me, awarded 18 points and not to be reassessed again on the notice.





What group do you think i will be in.

Not to be reassessed is the Support group

I telephoned the DWP to see when i will be going into the support group and i was told NO. I pointed out the the part on the letter, not to be reassessed and was passed on to a different section and asked to do a Deterioration decision letter, in which i did.

3 weeks later, DWP sent me ESA50 form.
I telephoned to find out why, but told the tribunal letter did not matter and fill the form in and send all my medical proof in again.
What about my Deterioration decision letter, it has been decided and i still do not know the out come.
I said doing this form again means i will get 0 points from a person who types lies at the face to face. This is when i was told the call will be terminated and the line went dead.

The next day a letter came
 



I can not understand why this and their minds are all ready made up, if i win and in a support group, to be backdated to 20/08/2019, and not to the tribunal date 18/07/18

What will happen if i lost ?.

Would love to know what steps to take next.
I have seen the MP and a letter is being drafted.
Love to put this in the main stream news.

April2018mom

Ring DWP up to ask. I am slightly confused too. 

poppy123456

Hi,

You were awarded points for schedule 2 of the ESA regulations 2008 which is WRAG and not Support Group.

Schedule 3 is Support Group, which didn't apply to you and neither did reg 35 which is Support Group.

I'm afraid it's WRAG and i have no idea why the advice was to never to be re-assessed because this doesn't apply to those in the WRAG. As it's the WRAG you can be re-assessed anytime from 3 months.

If you reported a worsening of your condition and you've now been sent the ESA50 form because of that then i'm afraid you will need to fill that it and return it with all your evidence.

poppy123456

Schedule 3 explained here which states limited capability for work related activity (Support Group)

http://www.legislation.gov.uk/uksi/2008/794/schedule/3/made

I'm afraid i can't find schedule 2, if i find it, i'll post the link for you.

david235

You don't want the "As made" links on legislation.gov.uk for The Employment and Support Allowance Regulations 2008 (SI 2008/794), @poppy123456 - that version is seriously misleading as there have been several important amendments. This 2008 Statutory Instrument predates legislation.gov.uk offering updated versions of key pieces of secondary legislation such as this one. The PIP Regulations are available on legislation.gov.uk in updated web page form, but not the ESA Regulations 2008.

The ESA Regulations 2008 are available in updated web page form in the standard law databases (LexisLibrary, Westlaw UK and so on), but these are expensive subscription products not available to the public. Very few public libraries have subscriptions even to one of these databases any more - those that do tend to have one machine authorised for use by librarians only. If you can get access to a law library, members of the public are not allowed to access electronic resources. Even if you do get access, these databases are not the easiest things to use without training and experience. LexisLibrary has a powerful but rather arcane search syntax.

Fortunately there is a compromise of sorts which helps in this case. If you go to the "Table of Contents" tab, then click "Latest available (revised)" at the left, you are offered a PDF that does incorporate the amendments (click for a direct link to the current version). If you want to direct link to a particular page in the PDF, add #page=123 or whatever to the end. Schedule 2 can be found at http://www.legislation.gov.uk/uksi/2008/794/pdfs/uksi_20080794_301118_en.pdf#page=133 and schedule 3 at http://www.legislation.gov.uk/uksi/2008/794/pdfs/uksi_20080794_301118_en.pdf#page=139

godsend

Hello and thank you,
david235, yes i can see this, but if you read the above tribunal letter, the magic words are "not to be reassessed" which is a new ball game and that is the point
In support group or start a new claim, very unsure.
Tribunal dates or DWP dates.

godsend

Do i go by the tribunal or the DWP.
Deterioration decision letter, is just a waste of time and any more medical problems are the same.
April2018mom, no good in telephone, no idea (DWP).
Popppy123456. this is back to the no idea again.

david235

@godsend - my earlier reply was merely answering @poppy123456 's comment about Schedule 3.

The Tribunal decision unambiguously places you in the Work-Related Activity Group as it neither awarded you a Schedule 3 descriptor nor ruled that Regulation 35 applied. This deals with both the routes into the Support Group - one or more Schedule 3 descriptors applying, or Regulation 35 applying.

The Tribunal's letter explicitly says that the Tribunal's recommendation on reassessment is non-binding on the Secretary of State (the legal term for the DWP). Though the Tribunal's recommended no further assessments, DWP guidance on Severe Conditions does not allow no reassessment for people who are not in the Support Group, so it will not be followed. Most likely, DWP will have taken the Tribunal's recommendation as "in the longer term", which usually means two years for people in the Work-Related Activity Group.

"Not to be reassessed" appearing by error in the Tribunal's decision do not magically move you into the Support Group, I am afraid. The binding part of the decision makes it clear that the Tribunal does not place you in the Support Group.

You then reported a change in circumstances in a further attempt to be moved to the Support Group, which means you must fill in the ESA50 form and undergo assessment. Whilst I can understand you are bitter about what you have been through, it is not surprising that the DWP call-taker terminated the call when you accused assessors of lying.

You have reported a change of circumstances now and have been required to undergo reassessment. You cannot now undo that. You must co-operate fully with the reassessment process otherwise your claim for ESA is likely to be closed for failure to participate in the assessment process when required to do so. I know it is tough, but please try to take a step back from all the bitterness and try to concentrate on making a good quality response that shows clearly why you meet one or more Schedule 3 descriptors or Regulation 35 applies to you. Those are the only ways you will get into the Support Group.

poppy123456

godsend said:

Hello and thank you,
david235, yes i can see this, but if you read the above tribunal letter, the magic words are "not to be reassessed" which is a new ball game and that is the point
In support group or start a new claim, very unsure.
Tribunal dates or DWP dates.

As david and myself have advised the "not to be reassessed" part of the letter doesn't apply here because you were placed into the WRAG not the Support Group. You can only be placed into the severe conditions group if you are in the support group and getting into the support group through reg 35 doesn't qualify you to never be reassessed. You must get into the Support group through schedule 3regulations for the severe conditions to apply.

You do need to concentrate on filling out the ESA50 form and making sure it's returned on time, otherwise your ESA will stop for failing to return.

poppy123456

@david235 thanks but i simply added that link to show what schedule 3 is and not for any other reason. It was just to prove my advice is correct that schedule 2 isn't the support group.

david235

poppy123456 said:

@david235 thanks but i simply added that link to show what schedule 3 is and not for any other reason. It was just to prove my advice is correct that schedule 2 isn't the support group.

Of course - it was for your reference in the future, with all the many helpful answers you post here.

godsend

Thank you david235, poppy123456
Schedule 3, reg 35, i understand this, and this is not the problem.

The DWP letter is so twisted, after 2 weeks from the tribunal date i telephoned to see what or which group i will be going in and pointed out the not to be reassessed statement.
DWP have made the letter into a request to go into the support group, in which it is not a request made by me.

I am not in any group, hence the telephone call, on the telephone i was told i will be on ESA and reassessed in 3 years time.
I have no letters or telephone calls to say what or which group.
The deterioration decision letter was the DWP telling me to write one.

Having 18 points places me in a group, I am not in any group, i am on my wife's ESA which is not WRAG. 

david235

@godsend - The timeline is as I said.

The Tribunal unambiguously placed you in the Work-Related Activity Group - that is the consequence of them finding you had at least 15 points on Schedule 2 descriptors, but neither any Schedule 3 descriptors nor Regulation 35 applied.

You can keep arguing with DWP about the "no reviews" part of the Tribunal's findings, but it will not change which group you are in. The Tribunal recommendation of no further reviews always was non-binding on DWP and will be disregarded, as you are in WRAG not the Support Group.

The argument that "the Tribunal recommended no further reviews, so you must move me to the Support Group" is, I'm afraid, nonsense from a legal perspective. An implication that suggests one thing cannot overrule a clear ruling that says something different.

You were then persuaded to report a change of circumstances: deterioration. This has triggered a request for reassessment that you cannot now escape from. You must comply with the assessment process, which will determine your entitlement to ESA going forwards.

poppy123456

18 points schedule 2 is WRAG not Support Group.

What confuses me is this " I am not in any group, i am on my wife's ESA which is not WRAG."

Can i just ask who's Tribunal was this, yours or your wife's? If it's yours then you must have been claiming Contributions based ESA for this claim, is that correct?

As you're on a joint claim with your wife then you can't both be in a group for the joint claim, which group is your wife in?

Sorry but i'm confused...  

godsend

Hi poppy123456

wife's esa is wrag.

I was on the esa, no group, the year before due to 0 points.

Tribunal was mine.

i am still sending in my fit notes.

Letter from MP

godsend

confused even more,



Even dwp are confused.

godsend

DWP have said it will take up to 3 days for telephone call to see if anyone can explain this letter, the guy on the phone said he is confused, why i got that letter plus p45.

poppy123456

I'm afraid based on that letter it's impossible to give any advice because it doesn't say anything other than "the law says we can't pay you any ESA" if the DWP are confused then that says it all but surely DWP know the reason why you can't be paid any ESA

Although, i would like to add that who ever this claim is for yourself or your wife because i'm totally confused by that is that if you're in the WRAG claiming Contributions based then this is only paid for 1 year.

godsend

Yes poppy123456, we know how long in WRAG, the claim is mine not my wife's.
I have not had a ESA claim since i got 0 points.
I moved on to the wife's after the 0 points.
The tribunal was a year later, i won and asked what group.
I am on the wife's ESA still, but the letters are confusing.

poppy123456

Is the letter for yourself or your partner?

godsend

All mine, with a p45 as well.