Employment and Support Allowance (ESA)
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ESA appeal

dmldml Member Posts: 16 Listener
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 

Replies

  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    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.


    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.
  • dmldml Member Posts: 16 Listener
    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?
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    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.
    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.
  • dmldml Member Posts: 16 Listener
    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 
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    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?
    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.
  • dmldml Member Posts: 16 Listener
    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 
  • dmldml Member Posts: 16 Listener
    edited September 2019
    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 
  • dmldml Member Posts: 16 Listener
    It I think that’s regulation 35 (2) 
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    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.
    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.
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    Regulation 29 explained here. Limited capability for work is WRAG. http://www.legislation.gov.uk/uksi/2008/794/regulation/29/made

    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.
  • dmldml Member Posts: 16 Listener
    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 
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    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.

    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.
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    @Adrian_Scope i wondered if you could give your opinion on this please? Thanks in advance.
    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.
  • dmldml Member Posts: 16 Listener
    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 
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    If what you have written in the first comment above is exactly what the decision letter states then i'm afraid it's WRAG.
    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.
  • Adrian_ScopeAdrian_Scope Testing team Posts: 7,954

    Scope community team

    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.
    Senior Community Partner
    Scope

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  • dmldml Member Posts: 16 Listener
    So how was my appeal allowed?
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    @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.
    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.
  • dmldml Member Posts: 16 Listener
    Thanks for your help guys
  • dmldml Member Posts: 16 Listener
    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?
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    The first step to this will be requesting the statement of reasons and record of proceedings within 1 month of the date of the decision, as you are outside of that timescale i'm unsure what can be done now. You can't appeal without finding the error in law and you won't know if that's been made without receive both of those.

    Either way this is far too complex for an internet forum and you really should get some face to face advice from an agency near you.This link will help you find what's local to you. https://advicelocal.uk/

    If you are outside of the timescale then putting in a change of circumstances maybe your only option but i'd only advise this if you're sure you meet the Support Group descriptors/reg 35. As the Tribunal decision has only recently been made that decided you didn't meet reg 35 then using the same evidence you previously used isn't going to help you. Again face to face advice is needed.

    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.
  • dmldml Member Posts: 16 Listener
    Thanks again for your help. I’ll call them tomorrow before firing off any set aside form 
  • Joanne_ScopeJoanne_Scope Scope helpline, Scope adviser Posts: 190 Pioneering
    Hi @dml, I agree with @poppy123456 and @Adrian_Scope that you need further support with this. It is possible to make a late request for the statement of reasons, the tribunal can extend the time limit. You may have to give them a good reason but in my experience they will usually send it to you outside the month time limit.
    Once you get this you have a month to write a letter stating why you think that the appeal decision was legally wrong and asking for permission to appeal to the Upper Tribunal. This is the point at which you would benefit from some help.
    The Disability Rights Handbook states: "if you miss any of the normal 1-month deadlines, the Upper Tribunal can allow your application if it thinks it is fair and just to do so. Your application must contain details of why it was late."
    I hope you manage to find some help with this. There is some useful information on the Scope website about appealing to the Upper Tribunal which gives links to places that may be able to support you.
    Good luck and let us know how you get on.

    Joanne 
    Scope
  • dmldml Member Posts: 16 Listener
  • dmldml Member Posts: 16 Listener
    edited December 2019
    I’ve finally heard back from the Judge on this today 5/12/19 and he has indeed set the decision aside. Stating “ the tribunal finds that there was a procedural irregularity. It appears that the tribunal believed that they were dealing with an appeal where the Apellant had received any award of benefit whereas he was already in the work related activity group. This is supported by the fact that the tribunal awarded no points on the descriptors whereas the respondent had awarded 15 points on mental health descriptors and those points were not disputed by the respondent” 

    I haven’t a clue what this means, but I have been told to expect another tribunal hearing within the next three months. Great, more anxiety and depression 
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    It basically means that the decision made by the previous panel has been set aside because of the error that was made. It will now go the first tier Tribunal, where you'll have a completely different panel and you'll have another hearing date. This is a good thing. Good luck and hopefully you're not waiting too long for that date.
    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.
  • dmldml Member Posts: 16 Listener
    Thanks poppy123456 I was told over the phone that the judge was highly unlikely to elaborate upon the decision or indeed set it aside. So you’re right, it is positive in that respect. It’s just going through a fresh tribunal is painful in the time aspect. Actually, via my MP, the DWP did admit that they could see the judge mentioned in my original decision notice that I may not have lcwra. However they required more information. So I suppose a fresh tribunal is the correct course of action.
  • Adrian_ScopeAdrian_Scope Testing team Posts: 7,954

    Scope community team

    Best of luck @dml. I can't imagine how stressful it must be to have to face another tribunal so soon but at least it means they are looking at it again. 
    Senior Community Partner
    Scope

    Your feedback is really important to the development of the online community, so please remember to complete our online community annual survey
  • dmldml Member Posts: 16 Listener
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