Mandatory Reconsideration of ESA - Some Advice Please

Maxinus · January 2019

My husband has recently been denied ESA benefit following assessment. They have not taken a subsequent health report into account and many things are flawed with the report when we requested a copy. Is it best just to ask for an MR and not supply the health report, or give any pointers to the descrepancies, or simply just to ask them to reconsider, keeping all this infomation for a subsequent appeal? I ask this because I don't think it will make an ounce of difference to the DWP and this could influence the chances of an appeal perhaps being successfull if this is already submitted. Also does anyone know if appeals are also a waste of time, or are some successfull? - Thanks, in advance for any answers I may get.

poppy123456 · January 2019

Hi,

The MR is of course your first step to any appeal process, without first doing this then the Tribunal will refuse your request.

I'm not sure why you would hold back sending the evidence with the MR letter of request. It won't make any difference to any decision the Tribunal make in the future, whether you send it with the MR request or wait until the Tribunal request. It won't go against you if you send it with the MR.

18% of MR decisions remain the same, so its most likely he'll have to take it to Tribunal. 71% of those who appear in person at their Tribunal have a decision in their favour, if they're represented. If they're not represented then this drops to about 50%.

When requesting the MR you need to decide which group you think he should be in and your reasons why. Having a look at the WRAG and Support Group descriptors will help you with this. For WRAG he'll need to score at least 15 points. For Support Group he needs to satisfy at least one of the Support Group descriptors or reg 35.

If it does get to Tribunal then waiting times are huge for most areas and he could be waiting as long as 1 year for a hearing date.

Was he previously in a group or on assessment rate? Was he claiming Income related ESA or Contributions based? If it was Income related and he applies for UC then he won't be able to go back onto assessment rate for ESA while waiting for the Tribunal.

See links for descriptors to both groups.

https://www.benefitsandwork.co.uk/employment-and-support-allowance/esa-glossary/1354-work-related-activity-group-descriptors

https://www.benefitsandwork.co.uk/employment-and-support-allowance/esa-glossary/1353-support-group-descriptors

http://www.cpag.org.uk/content/making-exception

Maxinus · January 2019

thank u for the information. I am worried that if additional information is presented for the MR, they will need new information for an appeal, my husband was on contribution based esa, so would he b able to claim esa while appealing? It’s difficult to place my husband in a group as he has Spondylolisthesis and the way the criterion is set out in the assessment makes it seem like he is ok, it’s all very contrived, although he’s not ok and as a construction worker can’t work without repercussions to his health, although they have recommended he could benefit from a wheelchair in the workplace.

poppy123456 · January 2019

I really don't know why you think sending additional evidence for the MR will affect the Tribunal, if they ask for more evidence. That's not the way it works.

Contributions based ESA is paid for 365 days unless you're placed into the Support Group. Before he was found fit for work was he in a group or on assessment rate? Whether or not he's paid while waiting for the Tribunal will depend when he started the ESA claim and how much time is left of the 365 days.

As he's claiming contributions based then he really needs to look at the Support Groups descriptors to see if any apply. Unless he's entitled to income related ESA (this will depend on household income and whether you work)

Maxinus · January 2019

In the original letter from dwp he has been classed as receiving contribution based esa payable for up to 365 days, there is no mention of any group he is in. This was prior to the assessment. There is approx. 9 months left of the year. He is not entitled to income related esa. I realise I will have to supply the additional information for the MR. We have a copy of the assessment report which contains inaccuracies but I feel it will be best to highlight these at the appeal, what do you think?, I.e. she has put the wrong occupation for my husband, as an unskilled instead of a skilled profession which is quite a major mistake to make. I have also been told to contact my local mp to support any appeal, I am not sure if this would be beneficial? Thank u for the links , to various information it’s very helpful.

poppy123456 · January 2019

Assessment rate ESA is £73.10 per week, £146.20 every fortnight is this the amount he was receiving? If so then this was assessment rate, contributions based. If there's 9 months left then i'm assuming he started his claim 3 months ago?

I wouldn't make a huge point of the lies or inaccuracies in the report because DWP or the Tribunal won't be interested in any of these. They will only want to know how his conditions affect him. ESA is about the work you can do and not the work you can't do and this is what they assess you on. You need to concentrate on which group he thinks he should be placed into and the reasons why. For example, Support Group descriptor 1 is mobilising, for this they will take into consideration his ability to use a self propel wheelchair. If he can reasonably use one of these then he won't be placed into the Support Group under this descriptor.

I'm not sure what a local MP can do here because they often know very little about benefit claims. I'd concentrate on finding an advice centre where he can get representation. Pop your postcode into this link to see what, if anything is in your area for help.

https://advicelocal.uk/

Citizens advice don't represent people with Tribunal appeals anymore so Welfare rights or a law centre is a good place to start.

Maxinus · January 2019

So this is why they have identified he could use a self propelled wheelchair, so that will not be an option. I have contacted age UK to see if they can help or advise. Yes he has 9 months left. Many thanks for your help.

poppy123456 · January 2019

No problem. Who recommended that he could use a wheelchair in the workplace? The health assessment providers who did the ESA assessment? If so, is he able to self propel a wheelchair? If he can't then he need to state the reasons why he won't be able to use one, as well as his reasons for not being able to mobilise.

As he has 9 months left then if the MR decision remains the same and there's an 82% chance it will, when the Tribunal accept his appeal he'll be able to go back onto assessment rate for ESA. This can be backdated to the date his ESA stopped but he'll need sick notes from that date. Good luck.

Maxinus · January 2019

The decision maker identified he could use a self-propelled wheelchair, and I suppose he could although he has never tried, hence my reasoning in saying they have slipped that one in to keep him out of that group. As his situation is not clear cut, I am not sure which category to site him in, probably the work-related group. Its very difficult, thank you for all your advice.

poppy123456 · January 2019

You're welcome.

They wouldn't have just slipped the self propel wheelchair in, it's part of the criteria that they assess you on for the Support Group. For mobilising you not only need to show you're unable to walk more then 50 metres regularly, you need to show you're unable to use a self propel wheelchair.

If none of the Support Group descriptors apply and it's the WRAG he's placed into, it's only paid for 365 days. It will stop after that, unless he's entitled to Income related and you said he's not.

Maxinus · January 2019

Thank you, I will look at the 50 metre criterion. What is difficult with my husbands situation is, that if he continues to work he can make his condition worse. Its to do with trapped nerves and fractured spine which causes intermittent symptoms, although it does affect his walking etc. He cannot do a physical job or he is flat on his back for weeks, but there is no allowance for this type of thing in the assessment. He has to be extremely careful with walking, stretching etc. How do you put someone in a 'group' when none of the criterion seems to fit, but he is actually not fit for work or it could jeopardise his health. Is there a special circumstance category?

poppy123456 · January 2019

For the 50 metre criteria they take into consideration being able to use self propel wheelchair, so if he's able to use this then he won't be placed into the support group through mobilising (50 metre criteria)

Reg 35 is special circumstances. http://www.cpag.org.uk/content/making-exception

Maxinus · January 2019

Thanks for all your advice.

Maxinus · January 2019

One more thing, do you have to use the official Mandatory reconsideration form or can you write a letter?

poppy123456 · January 2019

You can write a letter.

Maxinus · January 2019

Thanks

ravens62 · January 2019

Citizens advice were representing my husband at his appeal till they changed the venue and they could not attend so they do still do it in devon area i dont know about other areas u should check in your area x

poppy123456 · January 2019

ravens62 said:

Citizens advice were representing my husband at his appeal till they changed the venue and they could not attend so they do still do it in devon area i dont know about other areas u should check in your area x

That will depend on when you requested the Tribunal. Most CABs no longer represent at Tribunal because of lack of funding. Welfare rights and a law centre will still represent people.

Maxinus · February 2019

How long does it usually take for a decision from the mandatory reconsideration?

poppy123456 · February 2019

Maxinus said:

How long does it usually take for a decision from the mandatory reconsideration?

There's no time scales for any decisions. It can be anything from 2-8 weeks sometimes longer.

ravens62 · February 2019

Its taken us two years to get though the whole process of mandatory reconsideration and appeal and then we lost hope it goes better for you x

Mandatory Reconsideration of ESA - Some Advice Please

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