New illness and already waiting for the appeal to be heard.

bertiebat

dmg24 wrote: »

Now I am really confused - ESA was only introduced two years ago!

Exactly, I look forward to her? reply!

NASA_2

Ignoring the stuff in the later posts.

If a new or worsening condition is reported to the DWP they should then call the claimant for a new WCA while the appeal is ongoing. There are then multiple scenarios of what can happen after that.

Gemstar30

NASA wrote: »

Ignoring the stuff in the later posts.

If a new or worsening condition is reported to the DWP they should then call the claimant for a new WCA while the appeal is ongoing. There are then multiple scenarios of what can happen after that.

Thankyou for that. It was as I thought then.

So for a progressive deteriorating condition, there would be nothing stopping someone from having multiple claims running and more than likely, multiple appeals as well!

I can see what the DWP/Tribunal Service might try on and is have ALL appeals heard at the same time. That I would imagine is easilly argued against as is evidenced by previous Tribunal decisions.

So for every failure in the 'medical' and providing that there is at least one progressive condition, there is nothing stopping someone from notifying the DWP at the same time as sending in an appeal for the previous one.
In that scenario they would have as many 'bites at the cherry' whilst waiting the appeal hearings.

The reason I am looking into this is that if you wait for the appeal hearing first (now taking up to 18 months in some places) you will have to remain on the assessment rate.
Looking the other way, you could have up to 4 'medicals' a year thereby increasing the likelyhood of passing at least one of them before the first appeal hearing come about.
Also you would have a series of appeals lined up and once again the chances of passing one is that much greater.

As a point of interest, this question does not in the main relate to me, but a family friend.

Thanks once again for the confirmation

The following I think also answers my question:

“The advice that I must await my appeal outcome appears to be contrary to regulation 9 (15) of the Social Security (Miscelleneous Amendments) (No 3) Regulations 2010; I enclose a copy of the relevant regulation from that legislation, and highlight the specific part which I feel applies in my case. You may find the guidance memo available to ESA staff entitled "DMG 33/10", useful in considering my case. I believe that the detererioration of my condition is a relevant change of circumstances which ought to prompt a new determination of my limited capability for work.
Claimants appealing a decision

147A.—(1) This regulation applies where a claimant has made and is pursuing an appeal against a decision of the Secretary of State that embodies a determination that the claimant does not have limited capability for work.
(2) Subject to paragraph (3), where this regulation applies, a determination of limited capability for work by the Secretary of State under regulation 19 shall not be made until the appeal is determined by the First-tier Tribunal.
(3) Paragraph (2) does not apply where either—
(a)the claimant suffers from some specific disease or bodily or mental disablement from which the claimant was not suffering when entitlement began; or
(b)a disease or bodily or mental disablement from which the claimant was suffering at that date has significantly worsened.


Gemma

NASA_2

Well, it wouldnt be multiple claims, it would be multiple WCA's on the same claim (In an extreme scenario).

In that sense they are right that no new claim can be accepted while a current award is in place. The current award can always be reviewed though.

Gemstar30

NASA wrote: »

Well, it wouldnt be multiple claims, it would be multiple WCA's on the same claim (In an extreme scenario).

In that sense they are right that no new claim can be accepted while a current award is in place. The current award can always be reviewed though.

Thanks for correcting me on that one. Yes it would be a review of the 'new' claim which started following the appeal being submitted. On appeal, the assessment rate of ESA is paid and that this is treated as being paid on a NEW claim, not a continuation of the one under appeal.

Consequently, if after a review has taken place and for argument sake a medical is failed, the DM has to make a decision which is appealed against.

Does another 'new' claim not start again following that decision or is it simply the same 'new' claim with a failed review attached to it?

The way I read it is that following a determination of the review which fails the claimant, then another 'new' claim starts again following an appeal against that decision.
In which case there are multiple 'new' claims and not multiple new reviews on the original 'new' claim.


Gemma

TOBRUK

Crumbs .... I'm really confused by your post Gemstar!

All I can tell you is when I was at my first tribunal, I brought up the fact that I had deteriorated since I'd appealed, however, they stated quite plainly that they could not take any changes into consideration as the tribunal was only based on the original claim/application - any changes from then could not be considered. I don't know if this has changed since, as it was about 8 years ago.

Just a thought but I would think that after your tribunal, if you are successful, you would then let them know of the changes, however, they would consider your whole claim again!

NASA_2

I could be wrong but I thought that the same memo that we are talking about removed the provision that meant an appeal was actually a new claim. It had to be removed as everytime someone appealed it took a new decision to end the new 'claim' which then brought new appeal rights and the claim would never really end if people kept appealing.

Memo 33/10 made it so that a new claim didnt need to be made when an appeal was made - and entitlement now ends when the tribunal decides the department was right without a further decision being required. Thus removing the right of payment under appeal continuing indefinately.

Thus, its only ever a review of the original claim, not a new claim.

bertiebat

Gemstar30 wrote: »

Hello

Ahhh now I see what you are getting at.

My original claim for ESA was before I retired. Failed the assessment and appealed. Then things went from bad to worse with my health. Then I reached retirement age and started to receive my OAP. ESA then stopped.

I still have my appeal going through, but my problem was that in between being told that I failed the assessment and reaching retirement age my health deteriorated further. That is the bit I am trying to get them to look at now, not after the Tribunal.

I do not have a current ESA claim just the appeal and the bit after up until it stopped.

Sorry if I have confused you - I confuse myself!!!!

Gemma
x

I have no wish to question a genuine poster, however in my defence I would like to point out that your posts have always referred to yourself and therefore conflicting information did not makes sense.

I will leave it at that.

Gemstar30

TOBRUK wrote: »

Crumbs .... I'm really confused by your post Gemstar!

All I can tell you is when I was at my first tribunal, I brought up the fact that I had deteriorated since I'd appealed, however, they stated quite plainly that they could not take any changes into consideration as the tribunal was only based on the original claim/application - any changes from then could not be considered. I don't know if this has changed since, as it was about 8 years ago.

Just a thought but I would think that after your tribunal, if you are successful, you would then let them know of the changes, however, they would consider your whole claim again!

Hello,

Yes from June 2010, the Regulations were clarified. Previously it was opinion that after an appeal had been lodged and you received the assessment rate of ESA until the appeal was heard, that payment was in respect of the original claim and purely a continuation of it.

However, since June 2010, the assessment rate is paid on a 'new' claim and is not a continuation of the old one under appeal.

This now opens a whole new scenario. As a new claim, and if you have a deteriorating illness or even a new one since the decision to fail the last one, you can apply for this 'new' claim to be reviewed in the light of the deterioration or new illness and if appropriate, a new ATOS medical without having to wait for the result of the appeal hearing.

Fail that one and appeal, then you have two appeals going forward. Then again if there is another deterioration or another new illness start all over again.

The idea I am trying to formulate is to have as many bites of the cherry whilst waiting for the appeal to be heard. The more times you put a 'review' forward, the more chance there is of winning at least one of them! And not having to wait until the Tribunal comes round in 18 months time! Hence the chance to get accepted onto ESA that much quicker.

This will only work if you have a deteriorating and progressive illness or indeed you have further new illnesses.

Gemma

TOBRUK

Sorry, I've just realised that you are referring to ESA - my tribunal was for DLA and so I don't know if that has changed with the appeal process, tribunal practices and change of circumstance.