ESA now granted but wrong group

oldestrocker

Hi,

More than likely this is going to be in the wrong place, so apologies up front if it is.

Anyhow nobody at the DWP can tell me what to do.

Like most people I appealed against the decision that I was fit for work. Received 9 points for having regular lapses of consciousness.

Last week received a letter from the DWP saying that a decision had been made by the Tribunal that my appeal was successful and that I am to be put in the Work Group.
The appeal was sent in 11 months ago and during that time I have got together a mass of evidence, reports and opinions from all and sundry. Just the hospital records and GP records alone have cost me £200!! (3 hospitals and a GP)

I have been waiting for a date and then I was going to send in all of this evidence and submission. Despite asking for an oral hearing they have gone ahead and decided between themselves that the DWP were wrong.
The only evidence the Tribunal have ever seen is the package that the DWP sent them with my appeal. So they have made their decision on that lot alone.

Apart from the fact that I failed the medical, I was to ask the Tribunal to put me in the Support Group as there is enough evidence that shows that to be the correct one (cannot walk or move more than 30 metres without feeling pain or having discomfort).

Additionally, because of what I am suffering from is 'progressive' and will never improve. There is no cure just opiates to keep the pain at bay. Eventually it will kill me, don't know when but that is the medical opinion.
As such I was also going to ask that I should not be retested again, but if that wasn't possible, then no tests for at least 3 years min.

Now that I have never been given the chance to argue this where do I go from here?

The medical was at the start of this year and since then things have gone downhill fast (from a medical point of view) The DWP don't know about this either, but it dosen't matter now or does it?

Hope that all that makes sense, if not please ask questions.

Thanks

dmg24

The Tribunal considers your condition at the time of the medical/ WCA, not now. If you wish for your condition to be reviewed to take into account your decline, you can request this, but you will be starting the process all over again.

speedfreek1000

You can appeal the decision about which group you were put into.

If you have enough supporting evidence then I strongly advise you to do so.

There should be no financial penalty as you will continue being paid at the WRAG group level you have now been awarded.

See here http://www.newcastle.gov.uk/core.nsf/a/wr_esachallenging

As for progressive and degenerative conditions any significant change should be reported as it's a change of circumstances. In the same way getting better should be reported so should getting worse. What it will do is effectively kick off a new claim which requires a new decision (ad nauseam).

In either of these cases I'd try and seek some advice (from CAB/Welfare Rights) on the best way to progress this. I'd also call both the Tribunals Service and the DWP to seek clarification on when/by whom/how the decision was made.

Good luck

oldestrocker

dmg24 wrote: »

The Tribunal considers your condition at the time of the medical/ WCA, not now. If you wish for your condition to be reviewed to take into account your decline, you can request this, but you will be starting the process all over again.

Thanks for that, much appreciated.
Yes I am aware that the Tribunal Service can only consider the health position as at the date that the original decision to fail me. What has happened since with my health is something else.

When you say starting again, I presume you mean a new claim, new ESA50, new medical and new decision.

So I presume that the risk is that I could stand to lose the ESA altogether with this new claim and go back onto the appeal assessment rate?

I can understand now why people don't want to 'rock' the boat when they 'win'!

From my point of view the extra £25 is not the be all and end all of this. I would like to have the recognition that my illnesses are such that my ability to work is such that the 'Support' group is more representative than the 'Work' group. Also the retesting of my abilities is a waste of everybdy's time, effort and money.

Am I being silly here in asking for this recognition and are the risks real as indicated above?

Thanks

oldestrocker

Thanks for that info that I will continue to receive ESA at the 'Work' group rate until the decision is made about the deterioration.

I also now understand that it is as much my responsibility to notify the DWP of any changes - whether I improve or deteriorate.
As I have said to the other poster, I can now understand why people don't 'rock' the boat when they win!

As you suggested, I have now spoken with both the Tribunal Service and DWP to get to the bottom of who decided this new decision and why, when all I have wanted to do was to produce the evidence in a court setting.
The Tribunal Service were very helpful and very honest!

Despite what my letter fom the DWP dated 1/11/10 says about an 'independent appeal tribunal having heard the appeal they have decided....' - there has been NO decision made by their department!!!
I ask why then....., it appears that there is currently a UK task force of DM's going round all of the BDC's rechecking cases that are open for appeal to see if the original decision was wrong and if possible, could they find the 15 points needed!
The Tribunal Service say this is in part organised to try and reduce the numbers waiting for an appeal and secondly to try and establish if, on reflection, the original DM was too harsh. Off the record I am told that this has come from 'above' to try and see why the failures at the medical stage are at such a high level!!! - wonders will never cease!!
The DWP notified the Tribunal Service of this new decision and consequently the appeal now lapses.

I then contacted the DWP and got nowhere. They are now saying that 'at the reconsideration stage' our original decision has been changed in my favour. Absolute rubbish!!!
That reconsideration took place 9/10 months ago before they sent the file to the Tribunal Service. When I tried to press them into why, who etc, she said she would get somebody to telephone me back from their Medical Services Dept - whatever that is? So I wait.

No matter what they come up with, they have seen no evidence at all about my health - so the it begs the question - what has changed and why has it changed. They are no better informed now than they were at the start after my ATOS medical!!!

Are they trying to water down the failure rate without making it public? If so, then that is one hot potato - having said in the past that the medical for ESA and the decisions based on it are valid and correct - and that came from No. 10!!!!

I will get to the bottom of this as I need explanations and answers as well as being allocated to the correct 'group' after I send in the evidence.

I have not seen anything in the papers about this, has anybody else come across this 'new' review ordered within the past 4 weeks by Whitehall?

Finally, it seems that by asking for a reconsideration due to new illnesses and a deterioration of the existing ones, I may be leaving myself open to losing the whole thing and ending up back on the assessment rate awaiting appeal.

I have until the end of this month to decide how to go forward - keep quiet, take my money, or rock the boat and lose everything!

bertiebat

oldestrocker wrote: »

Thanks for that, much appreciated.
Yes I am aware that the Tribunal Service can only consider the health position as at the date that the original decision to fail me. What has happened since with my health is something else.

When you say starting again, I presume you mean a new claim, new ESA50, new medical and new decision.

So I presume that the risk is that I could stand to lose the ESA altogether with this new claim and go back onto the appeal assessment rate?

I can understand now why people don't want to 'rock' the boat when they 'win'!

From my point of view the extra £25 is not the be all and end all of this. I would like to have the recognition that my illnesses are such that my ability to work is such that the 'Support' group is more representative than the 'Work' group. Also the retesting of my abilities is a waste of everybdy's time, effort and money.

Am I being silly here in asking for this recognition and are the risks real as indicated above?

Thanks

I don't think your being silly in wanting to have recognition for a progressive illness, but there is little leeway in the descriptors used to account for this.

One thing to note is that there are new descriptors being proposed and with a view to implement in April. The major impact that could effect you based on what you have said, is that fact that they are changing the walking descriptor to 'mobilise'. This would mean that if you were able to use a manual wheelchair, then the distance would be measured on that basis.

The other new proposal is of course the time limit of a year on contribution based ESA people in the WRAG. This limit doesn't apply to the support group. I can see this as a major factor in people wanting to be recognised as having progressive illnesses and therefore in the support group.

Just as a by, I thought that there was only about £5 difference between the WRAG and support group once on the long term rate?

oldestrocker

bertiebat wrote: »

I don't think your being silly in wanting to have recognition for a progressive illness, but there is little leeway in the descriptors used to account for this.

One thing to note is that there are new descriptors being proposed and with a view to implement in April. The major impact that could effect you based on what you have said, is that fact that they are changing the walking descriptor to 'mobilise'. This would mean that if you were able to use a manual wheelchair, then the distance would be measured on that basis.

The other new proposal is of course the time limit of a year on contribution based ESA people in the WRAG. This limit doesn't apply to the support group. I can see this as a major factor in people wanting to be recognised as having progressive illnesses and therefore in the support group.

Just as a by, I thought that there was only about £5 difference between the WRAG and support group once on the long term rate?

Thanks for that info. Yes I was aware that they will be using a 'virtual' wheelchair if appropriate. Crazy but never mind. In my case because the pain is related to the upper body, any use of the internal muscles in the chest area is a no no, I'm not even allowed to push a supermarket trolley!! Never mind a wheelchair.

And yes the proposals to limit 'work' group contribution based ESA will eventually be for a max of 12 months! No doubt they have worked out that after then I would be using somebody else's contributions and not my own!!

Yes I apologise for that, my brain is slower than my typing fingers! I know what I meant, but yes it is confusing. What I meant was the difference between the 'work' group and the assessment rate if they decided on the review to cancel what I have just won. The £5 between the 'support' group and the 'work' group is correct - sorry.

I have to do a lot of thinking now, but will more than likely ask for a new claim to review everything in the light of my current health condition. If I lose I lose. But yes, I do expect them to consider the evidence properly as this is now a matter of principle, not money - hence why I said I would accept the reduction of benefit from £91pw to £65 if need be. I have to stand up for what I believe is right and just - nobody else will do it for me will they?

Thanks

speedfreek1000

Thanks for the info on who made the decision. We have 5 on another board I reside on who have in the past week experienced exactly the same thing :j

I'm just hoping hoping it's all appeals and not just the ones almost at hearing as mines not due until Feb 2011 at the earliest

Anyway whatever has caused this sudden surge in good DMing lets all hope it lasts hey :eek:

Now your deterioration I'm not sure how this works once you've been awarded ESA and is why you need to seek expert advice on the Regulations.

Although you can appeal the current decision they will not consider any deterioration that has happened since the date of the original decision 11 months ago.

I'm suspecting that you will have to make a new claim to get the new evidence considered in a new decision based on the date of the new claim.

You will then be in the position of having 2 separate claims running at the same time.

The DWP will not understand or like this which is why you need proper advice on the regulations (so that you can quote them chapter n verse) to get your deterioration considered.

speedfreek1000

On a side note I'd also raise a complaint with the DWP for the fact they have failed to provide you with an adequate service.

I'm sorry but 11 months to make the correct decision then lie and say it was somebody else :rotfl:

Copy that to your local MP and be prepared to escalate that to ICE http://www.ind-case-exam.org.uk/ & http://www.adrnow.org.uk/go/SubPage_72.html#wha

I can't find my link for raising one v's ATOS but I do know you have to raise it twice before they'll consider it official.

oldestrocker

Hi

I have an update on this and to be honest it has left me more confused than ever.

I took the bull by the horns as I could not accept that they could just change their mind after 10 months of waiting for a Tribunal date AND not give me any real reason as to why I now have 15 or more points based entirely on the same evidence.

So I appealed against the decsion that I should be in the Support group and do not accept their decision to put me in the 'work' group. Then I followed this up with a telephone call just to make sure that they would understand the position when they receive the appeal.

Anyhow, I had a lady telephone me this afternoon (she kept calling me 'sir' - is there something I don't know about?) from the DWP, saying that she had been passed an email about my earlier call???? Anyhow the conversation developed and she has come up with the decision that if I do appeal against being given the 'work' group (which I have and it has been posted) then they may take the 'work' group decision away from me leaving me back on the assessment rate if the Decision Maker does not agree with my suggestion about the 'support' group. It will then be left for the Tribunal to re-decide!!!!

What then transpired when I told her that since the time of the original decision in Feb, I have deteriorated healthwise - she said that they have never been made aware of that, (because I had been told by the DWP that I couldn't until the appeal had been heard) then this new decision had been made on undisclosed facts and a change of circumstances??? Yes of course it has - I should be in the 'Support' group!!!

But no, they are now going to definitely re - revise the 'work' group decision and definitely put me back on the assessment rate, until I can produce evidence to back up my claim. If I couldn't convince the Decision Maker to do that, then it will go to the Tribunal.

I suggested that the best way would be to start all over again with a new claim, new ESA50 and medical - and hope that they get it right properly. No, I can't have two claims going at the same time.

Where on earth do I go from here?

Yes I don't mind going as far as the Tribunal to argue which group I should be in (that was the intention until the DWP scuppered me with their recent stupid decision to put me in the 'work' group). But feel that it is going a bit far to put me back on the assessment rate.
Then when I tell her my health has deteriorated and that it wasn't taken into account when they made the 'work' group decision, it changes from maybe the assessment rate to definitely assessment rate. All because I failed to notify of a change of circumstances. I had already offered this info and evidence months ago but they refused it saying - not until after the appeal has been heard.

Anybody any ideas on how to solve this riddle please?

If it needs me to present all of my evidence I will. But in the meantime my money goes back down by £25pw all because they wouldn't just leave it alone and allow the original appeal to go it's natural way.
I daren't ask them about the £900+ that I have received as back pay because of going into the work group - will they want that back?

speedfreek1000

Being honest it sounds like they are making it up as they go along to try and put you off. Remember you'll be very lucky to find somebody working at the DWP (especially front line telephone staff) who has a firm grasp of all the complex ESA regulations or how they are implemented in practice.

As I said earlier you need to speak to a Welfare group who can assist you with what to do and give you a definitive answer plus some backing to boot.