Called in for medical assessment after winning esa appeal

Rose27 · 17 January 2018 at 1:03AM

Hi all, I'm hoping someone might be able to help me.

Cutting a long story short, I had a medical assessment in July 2017 and was awarded 0 points, I appealed the decision and my condition worsened. I put in a new claim for a worsening condition in October and was successful after a mandatory reconsideration. I attended my appeal in January 2018 and was awarded ESA. 5 days later I received a letter asking me to attend a medical assessment for my worsened condition. The courts have said that DWP should re-assess me in 24months. Do I have to attend or is it likely that they haven't updated their records yet? will this effect the claim I've just won? Any help would be much appreciated. Thanks in advance

epitome · 17 January 2018 at 1:35AM

You are the one who appealed and made a new claim at the same time.... you didn't have to do that (usually they will pay on appeal anyway)

So you won your appeal, but you also made a new claim which has now come to fruition.

What group did tribunal put you in? wrag or support

If support group, ask esa to cancel the new claim you made and withdraw the medical, that you want to remain under the appeal win.

if Wrag, then going to medical could result in support decision or could result in a fail and claim closure.

I;m not actually sure what the case would be if you attend and fail medical and on the other hand have a decision for 2 years from the courts.

Bottom line is..

if you want to go ....go
if you don't want to go then phone esa explain won appeal, and want the medical for the new claim withdrawn, to continue esa on court recommendation..

Rose27 · 17 January 2018 at 3:11AM

They would not pay me during appeal because I had two disallowances, I tried to fight this with help from Welfare Rights but was still refused payment during my appeal. DWP were trying to get me to apply for JSA but I wasn't well enough and refused. My condition got worse with all the stress and Welfare Rights advised me to put in a new claim, which I did in October 2017. I won my appeal for my previous claim and was placed into the WRAG with Regulation 29. After attending two previous medical assessments and losing, I doubt very much that I will be placed into the support group. If I cancelled my new claim on the basis of winning my old claim, would it effect my old claim in any way? I really don't want to attend another medical assessment, I have gone through hell with DWP the last two years and it was a weight off of my shoulders when I won my appeal. If there is any way I can avoid it and continue with my old claim then I would prefer to do that.

epitome · 17 January 2018 at 10:30AM

If you do nothing and don't attend it will cause a lot of trouble, they will close your claim for fail to attend as you will be fighting for your appeal win to take precedence - you would probably be succesful but it could take you months to get them to re-open. Likewise if you attend and fail...potential for lots of trouble.

If you want to avoid all that trouble, you will have to phone them now and ask that the new claim is withdrawn, in preference of going back onto your old claim. The trouble with this is you are not entitled for payment on appeal....so you are going back into limbo land no payments until your appeal win has been accepted and processed by DWP.

You are in a bit of a catch-22, but I think the second option is the least hassle.

When you phone the first thing you could ask is...

"I won my appeal on xxxx"
"Can you look to see if you have received the court notice that I have won appeal"
"Has the appeal win been accepted by your appeals decision makers"?

If the person you are speaking to does not know or is not confident in giving you answers then ask for an appeals call back, you want a call back checking progress of an appeal.

Then ask the call back person if they have the appeal win and if it has been accepted and sent to maintenance....if not when will it be?

If they say they do not have it ...you should have a appeal decision letter which you can have scanned by jobcentre appointment.

As soon as the decision makers have accepted the appeal win and put a note on your record to say that they accept you have won your appeal...your old claim can be reopened within a week if you are no longer receiving money and are therefore desperate for money to be reinstated.

Rose27 · 17 January 2018 at 2:42PM

I asked my Welfare Rights advisor to speak with them yesterday, DWP left me a voicemail today saying that although I have won my appeal, I will still have to attend another medical assessment because I made a new claim. Am I within my rights to cancel my new claim & continue with my old claim? Can I also ask, do you work for Welfare Rights, Citizens Advice or a similar organisation? Thank you for your help

Alice_Holt · 17 January 2018 at 6:45PM

The Tribunal Service recommendation for the length of the award is just a recommendation, it is not mandatory for the DWP to follow it (and in any case you have a new claim).

You must attend the WCA, or risk your ESA stopping:
https://www.citizensadvice.org.uk/benefits/sick-or-disabled-people-and-carers/employment-and-support-allowance/help-with-your-esa-claim/esa-medical-assessment/

"You must go to your assessment. If you don’t go, the DWP will assume that you’re fit for work and stop your claim. If you need to postpone it because you’re not well enough to go, make sure you call before the appointment.
Telephone: 0800 288 8777
Monday to Friday
Open 9am to 5pm"

But take a copy of the Tribunal Service Decision Notice to give to the assessor. Be clear on how you would be at risk if you were found fit for work - also take your Welfare Rights workers tribunal submission. Be clear on how your condition has worsened and how this impacts on the descriptors / Reg 29.

If you are unfortunate enough to fail (very unlikely), then get the MR in asap with a copy of the Decision Notice and a strongly worded MR letter. You should be one of the 20% who has the decision overturned at MR stage.

Alice_Holt · 17 January 2018 at 6:51PM

Rose27 wrote: »

Am I within my rights to cancel my new claim & continue with my old claim?

NO Not if you want your ESA payments to continue,
Epitome is correct in stating that you can close your claim at any point - but this will end your ESA payments. I am writing this post with the assumption that you do not want this outcome. Am I correct?

I think that your new claim will have superseded the old claim (which you won at tribunal). I am not absolutely sure, but I don't think you can assume that if you cancel the new claim you will then revert to the old claim.
Therefore, if you cancel your current claim, there is a real risk that your ESA payments will stop.
I would strongly advise you to go to the WCA if you wish your ESA to continue, and have linked you the Citizens Advice Guide to reference this recommendation.

Rose - Since you have received two differing responses from Epitome and myself, and have access to a Benefit Caseworker - I would be guided by your Caseworker as they know the specifics of your situation.

I have written my posts because I think your award could be at risk if you follow the actions you propose.
I believe it is safest way to ensure that your ESA payments continue is to attend the WCA .
I would strongly advise you to follow the advice you have received from Welfare Rights and Citizens Advice.
I think this is correct " Welfare Rights, Citizens Advice and the DWP have told me that if I cancel my current claim then my old claim will be cancelled also because my new claim takes place of my old claim." (Your Post 9), and fear that Epitome's suggestions may risk your ESA award.

Edit:ed for clarity following Epitome's post @ 8.

epitome · 17 January 2018 at 9:14PM

Alice_Holt wrote: »

NO

Of course she can close her current claim, you cannot be forced to keep a claim open.

If you cancel your current claim, all ESA payments will stop.
You must go the to WCA if you wish your ESA to continue.

You just told her she can't cancel her current claim.

Yes, if you cancel the current claim all payments will stop, which is what I said, but there is nothing to stop the OP from closing the current ESA claim and waiting (without payment) for the appeal win decision to be made.

Rose, I have already told you twice, what your options are. The DWP voicemail is incorrect, if that is what they said, no-one can force you to keep an ESA claim open if you don't want it to remain open....

Any ESA claimant has the right to close a live claim from any given date. You cannot be forced to continue with a claim that you no longer want.

Tell the ESA that you want the current ESA claim to be closed, in preference for awaiting the appeal win to be processed. And make sure that you confirm with them that they have also cancelled the WCA appointment as part of the process to close your current claim.

However, you should realise that just because the Tribunal has allowed your appeal for WRAG on Risk Regulation 29.. the ESA decision makers do not have to accept this. The DM could ask the court for a Written Statement Of Reasons and they could take it to Upper Tribunal....meanwhile you would still not be entitled to payments on appeal.

Which is why I told you to phone and ask those questions about your appeal and if necessary to ask for a call back from the ESA appeals department.
If the DM is aware you have won the appeal,? (if not scan your appeal letter via jobcentre appontment to ESA)
Is it being actioned?
Has the DM decided if they will accept the appeal win yet?
How long will it take?

Phone them up, ask the above questions.
Decide if you want to continue with the current claim while you wait or if you want to close the current claim while you wait.
If you decide to close the current claim pick a date you want to be paid up to and tell them you want it closed from the day after that date.

You could also claim Job seekers Allowance (post code permitting) while you wait for the appeal to be accepted.....but you must tell JSA that you are available for work and looking for work.

Rose27 · 17 January 2018 at 9:38PM

I'm a little confused, Welfare Rights, Citizens Advice and the DWP have told me that if I cancel my current claim then my old claim will be cancelled also because my new claim takes place of my old claim. I hear what you're saying Epitome but please understand my concerns. Do you have any relevant law sources to back up what you say? Do you know someone who has been in the same situation as me?

Rose27 · 17 January 2018 at 10:11PM

After winning my appeal, does my old claim superceed my new claim? & am I right in thinking that if I attend this work capability assessment, their decision will superceed the decision made by the courts? Do I have two active claims at present?

Rose27 · 17 January 2018 at 10:26PM

If I cancel my new claim, will DWP honor the tribunals decision to award me the WRAG? Bearing in mind I haven't been assessed for my new claim, which was set up whilst appealing my old claim & is there a way to cancel my new ESA claim making clear that I am not fit for work but would ask ESA to continue paying me based on the tribunals decision of my old claim? Or would cancelling my new claim, shut down both claims and disallow benefits?

Called in for medical assessment after winning esa appeal

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