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ESA appeal

dml

I appealed against the decision to move me from the support group to the back to work group for Esa. I was told at the tribunal that I had won my case. The DWP are saying I didn’t. Below is a copy of the decision notice.
1) the appeal is allowed
2) the decision made by the Secretary of State is set aside.
3) mr ******* has limited capability of work
4) this is because sufficient points were scored to meet the threshold for work capability assessment , but regulation 29 of ESA regulations 2008 applied
5) no schedule 3 descriptor applied.Regulation 35 of The Esa regulations 2008 did not apply
By reasons of the conditions in the papers Mr ***** is significantly limited. Nevertheless he does not score sufficient points. However if he were found capable of work this would be a substantial risk to his physical and mental health. In reaching the decision the tribunal placed particular reliance on the totality of the evidence.

That was it. The judge said that I had won my case and that any money owed would be reimbursed. I am at a loss as the dwp claim I am still in the same group. I rang the court. They told me I had won my case. So I am at a loss as to what to do next

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Comments

poppy123456

Hi,

I'm afraid DWP are correct, you are still in the same group. Limited capability for work is WRAG. No schedule 3 descriptor applied.Regulation 35 of The Esa regulations 2008 did not apply. These are both support group and neither of them applied.

It's WRAG/limited capability for work for regulation 29.

dml

So how did they tell me I had won my appeal, which was against the change, and indeed confirm this in the decision notice with appeal allowed?

poppy123456

I'm afraid i can't answer that question because i don't know anything about your case and how it was presented but the decision is clearly WRAG.

If you disagree then you have 1 month from the date of the decision to request the statement of reasons and record of proceedings. Once you receive this then you need to find someone to take a look to see if an error in law has been made. If it hasn't then i'm afraid you won't be able to take it any further.

If your ESA claim started before April 2017 then the WRAG payments will be approximately £102 per week. If your claim started after this time then you won't receive any extra money, it will remain at £73.10 per week.

dml

Thanks for your help. It’s much appreciated. The appeal was six weeks ago but I was never informed of how to challenge it. They told me I had won so just presumed there was a delay in processing it. I called the court today and they confirmed that my appeal had been won and that I should contact citizens advice and/or my MP. I just presumed that as the hearing was only 15 mins and they called me back in to say I had won, that I wouldn’t have to do anything else. They did hand me the decision there and then but I presumed the preamble was legal stuff. Obviously it was and I wasn’t aware of it. That’s frustrating, I would have had it checked out otherwise

poppy123456

I can only assume that you misunderstood what they told because based on what you've written above it's WRAG not support group.

The appeal was because you were placed into the WRAG, rather than support group yes? It wasn't because you were found fit for work?

dml

Yes exactly. I was originally in the support group, they put me in the wrag and that’s what I appealed. They told me I had won, the letter says my appeal was allowed and the original decision was set aside. I’m baffled

dml

It also says in their mandatory reconsideration that I would not be a substantial risk ‘if the claimant was not found to have limited capability for work related activity’. The appeal says I would be which was their view as to me being put in the support group

dml

It I think that’s regulation 35 (2)

poppy123456

dml said:

It I think that’s regulation 35 (2)

It says regulation 35 did not apply. It says regulation 29 applied and that's definitely WRAG.

poppy123456

Regulation 29 explained here. Limited capability for work is WRAG. http://www.legislation.gov.uk/uksi/2008/794/regulation/29/made

dml

Regulation 35 (2 ) (b), in a nutshell, is the regulation that allows entry to the support group for people who aren't covered by the support group descriptors, but where there would be a substantial risk to their health or someone else's health if they were found to be capable of work-related activities.2 Dec 2014

i got got this off line which basically states that their final comments should put me in the support group . Which is the final point (5) above which shows they have put me in that category

poppy123456

dml said:

Regulation 35 (2 ) (b), in a nutshell, is the regulation that allows entry to the support group for people who aren't covered by the support group descriptors, but where there would be a substantial risk to their health or someone else's health if they were found to be capable of work-related activities.2 Dec 2014

i got got this off line which basically states that their final comments should put me in the support group . Which is the final point (5) above which shows they have put me in that category

You are correct. However, this didn't apply to you as stated here in your post. See the bold highlighted areas. Regulation 29 applied and as advised that is WRAG not support group. Regulation 29 is also substantial risk.

3) mr ******* has limited capability of work
4) this is because sufficient points were scored to meet the threshold for work capability assessment , but regulation 29 of ESA regulations 2008 applied
5) no schedule 3 descriptor applied.Regulation 35 of The Esa regulations 2008 did not apply
By reasons of the conditions in the papers Mr ***** is significantly limited. Nevertheless he does not score sufficient points. However if he were found capable of work this would be a substantial risk to his physical and mental health.

poppy123456

@Adrian_Scope i wondered if you could give your opinion on this please? Thanks in advance.

dml

My I my interpretation of it is; that where as I do meet the wrag descriptors, by being found capable to wrag tasks, it would be a substantial risk to my physical and mental health. Thus 35 2 (b) comes in to account and I should be placed in the support group. Given my poor memory, I’m sure this is what the judge told me

poppy123456

If what you have written in the first comment above is exactly what the decision letter states then i'm afraid it's WRAG.

Adrian_Scope

Hi @dml and @poppy123456.

It's actually quite confusing as they've said your appeal is allowed and your appeal was to move from the WRAG group back to the Support Group. So on the surface you'd assume it meant you'd be returned to the Support Group.
However, it does plainly state that "Regulation 35 of The Esa regulations 2008 did not apply ", without that it can't be Support Group.

It's confused more by the line "this is because sufficient points were scored to meet the threshold for work capability assessment , but regulation 29 of ESA regulations 2008 applied" - if sufficient points were scored, regulation 29 shouldn't need to apply as you've already been found to have LCW.

I feel like an error has been made with your paperwork and it would be worth you contacting tribunal services.

As it stands though, with Regulation 35 not applying, you would be considered still in the WRAG group.

dml

So how was my appeal allowed?

poppy123456

@Adrian_Scope thanks for that.

Yes, agree, which is the reason why i asked if dml was in the WRAG before the Tribunal made the decision.

I also agree that contacting HMCTS in writing is the only solution here. When you contact them you need to ask why the appeal was allowed and the decision letter states reg 35 did not apply and reg 29 applied. Do let us know how you get on. Good luck.

dml

Thanks for your help guys

dml

Hi guys. I’ve spoken to hmcts and they said that because I did not meet the threshold for wca the judge recommended that I should have been ( it said insufficient points not sufficient)Because I did not meet this threshold 35 could not be looked at. It was then down to the dwps discretion of which group they put me in. They advised that I should ask for the judge to look at it again with a set aside. I don’t know if you have any advice on this?