What to do? ESA appeal and now claiming JSA!

BigSister2008

all i can say is we having been waiting on my OH's dla appeal since july 2010 and got a letter in december to say they were awaiting a date possibly march 2011 but we would know 4 weeks in advance but guess what - no letter yet

They also stopped his ESA with no notice and he also cant claim JSA as they say he is unfit for work

We eventually gave up and moved from the area to start afresh as no-one would help - the CAB were ok but the people we were dealing with have now left and no-one took over so even though we put down the member of CAB's name as our rep and he hs left wot happens at our appeal

We were advised to move abroad to help his health which we now go between here and spain as it helps in short bursts but not overall

The system are a nightmare - i find it easier working abroad with no help from the system and giving us enough money to survive both here and spain

NASA_2

dooney wrote: »

Hi, ill try and keep it brief, My husband has a motorbike accident last July and has been left with back and knee injuries. After being paid off from work last September he claimed for ESA which he received. In December he was to attend a Atos medical, but last minute they phoned to re arrange till January. January came and he received a letter asking why he did not attend, my husband had the re scheduled date on the calander for a week later. We filled in the form to state they had been a error made with the appointment times, but this was not an acceptable reason for not attending. His ESA was stopped, and he was to re apply for ESA, he was told to apply for a crisis loan in the mean time until an addtional medical was arranged. I currently work 20+ hours a week so we are trying to manage with the help of credit card.
My husband has now received another Atos appointment for a few weeks time.

I am now worried, as I have read if he does not not receive enough points we wont get any money for the weeks while we have been waiting. I don't know what to do, he can't work due to the injuries sustained, and he has been told he can't claim job seekers as he is not fit for work.

He has been recieving physio and attending MRI scan in the very near future.

Any advice would be appreciated,
thanks dooney

As far as I am aware, if he doesnt score enough points, he can appeal that decision and will then receive the money on appeal.

sunnyone

NASA wrote: »

As far as I am aware, if he doesnt score enough points, he can appeal that decision and will then receive the money on appeal.

I thought (but not 100%) that you couldnt do that after a missed medical now NASA?

rogerblack

NASA wrote: »

As far as I am aware, if he doesnt score enough points, he can appeal that decision and will then receive the money on appeal.

This is not quite true.

If he doesn't score enough points, and the tribunal disagrees with the interpretation of the law of the DWP/ATOS - then he can receive the money on appeal.

But the tribunal may be at best several months down the line, with no money until then.

It is vital to understand the descriptors, and how they apply to your case.

Any appeal not based on an exact interpretation of the law runs a severe risk of failure.
If the appeal fails, grounds for an appeal to the upper tribunal are _very_ limited.

On a different tack.
It may be possible to make a fresh claim if his condition has deteriorated significantly since the time of the first claim.
I'm unsure of the exact rules around this.

nad1611

Tehya wrote: »

OP: Never use the "bad day" idea because you may be accused of fraud. The best way to handle the medical is be honest and talk about your "average day" in other words how you are most of the time. You can mention that you have worse or very bad days and how often they occur.

What nonsense most examiners will never even ask you about your Bad days if you don't offer the information. No one and not melbi_uk was not suggesting for a moment to lie. She/he simply obviously has enough experience to know what is likely to get you through if you're a genuine case. You mention a thread about someone being prosecuted for only talking about bad days, well I haven't read it but I think there's going to be alot more to taht story than meets the eye, for starters how would an examiner prosecute someone on that sort of evidence, it's laughable.

It's not fraud to tell them what is the truth about your situation most of the time, the fact that you have one or two good days is probably completely insignificant if the bad days are bad enough.

If your bad days mean that it affects your abilities frequently enough and that although you might complete an activity one day or in the morning does not mean you'd be able to hours or days later.

I think Melbi_uk was simply offering some caution about being optimistic about what you're capable of that's not an encouragement to lie or defraud anyone.

nad1611

dooney wrote: »

thank you for all your replies.

just to clear up a few things - unfortunatly there will be no need to lie about anything as my husband is in considerable pain most of the time. He is unable to carry out any of the housework or play with our son. Due to the location of our sons nursery he is not even able to pick him up as the path is to long for him to walk down! He also is waking up in the night in pain causing him to be fatigued as well as run down with the length of time that he has been in constant pain. He is able to sit or stand only for short bursts before needing to re-adjust his position due to pain.
The physio he is under is worried about both injuries and due to the lack of results from the work put in at the physio sessions he is now referred for MRI's.

My main worry is that if for some insain reason he is not eligible then how do we back date maybe an income support claim.... even though he is not fit for work - if they deem him fit for work then can we back date a JSa type claim? really confused with all the rules and regs but know that we have no money coming in and a husband who is very poorly!

dooney

If as you say for some reason you fail the assessment then you appeal, you don't just sit back and accept the decision. Look if you've a genuine claim then gather as much evidence as you can to take with you and if you still fail, then you take that evidence and scutinise the info given in a link in an earlier thread, you go forward with it. Many people who seek independent advice such as CAB have tended to have a higher succes rate. Remember 40% of people who appeal are successful.

sardine

nad1611 wrote: »

If as you say for some reason you fail the assessment then you appeal, you don't just sit back and accept the decision. Look if you've a genuine claim then gather as much evidence as you can to take with you and if you still fail, then you take that evidence and scutinise the info given in a link in an earlier thread, you go forward with it. Many people who seek independent advice such as CAB have tended to have a higher succes rate. Remember 40% of people who appeal are successful.

Yes, but you must also remember that the majority that take their case to an appeal Tribunal lose - 60% lose!!

sardine

nad1611 wrote: »

What nonsense most examiners will never even ask you about your Bad days if you don't offer the information. No one and not melbi_uk was not suggesting for a moment to lie. She/he simply obviously has enough experience to know what is likely to get you through if you're a genuine case. You mention a thread about someone being prosecuted for only talking about bad days, well I haven't read it but I think there's going to be alot more to taht story than meets the eye, for starters how would an examiner prosecute someone on that sort of evidence, it's laughable.

It's not fraud to tell them what is the truth about your situation most of the time, the fact that you have one or two good days is probably completely insignificant if the bad days are bad enough.

If your bad days mean that it affects your abilities frequently enough and that although you might complete an activity one day or in the morning does not mean you'd be able to hours or days later.

I think Melbi_uk was simply offering some caution about being optimistic about what you're capable of that's not an encouragement to lie or defraud anyone.

I fully understand where you are coming from, but there does seem to be a cross link between knowing what is likely to get you through the assessment and the integrity of the claimant in not wanting to describe his/her day to day life in anything but a totally honest format.

I don't see the problem in saying that for 4 out of 7 days you are bedbound, 1 day out of 7 feeling better but still having mobility and care issues, and 2 out of 7 that you are fairly fit, in fact not really needing help at all for mobility or care.

If asked if you could push a shopping trolley around a supermarket, the answer should be: 4/7 not a chance, 1/7 possible but with some help and 2/7 with virtuallly no problems at all.

You can't give the impresssion that you are bedbound 7/7 thinking that if I admit to being able to cope 2/7 I won't get the benefit!

And as for being optimistic/hopeful/determined, surely you have to be otherwise you will drag yourself down if you end up believing that you can't do anything. Having an optimistic attitude is what will see people through an illness or problem.

melbi_uk

sardine wrote: »

I fully understand where you are coming from, but there does seem to be a cross link between knowing what is likely to get you through the assessment and the integrity of the claimant in not wanting to describe his/her day to day life in anything but a totally honest format.

I don't see the problem in saying that for 4 out of 7 days you are bedbound, 1 day out of 7 feeling better but still having mobility and care issues, and 2 out of 7 that you are fairly fit, in fact not really needing help at all for mobility or care.

If asked if you could push a shopping trolley around a supermarket, the answer should be: 4/7 not a chance, 1/7 possible but with some help and 2/7 with virtuallly no problems at all.

You can't give the impresssion that you are bedbound 7/7 thinking that if I admit to being able to cope 2/7 I won't get the benefit!

And as for being optimistic/hopeful/determined, surely you have to be otherwise you will drag yourself down if you end up believing that you can't do anything. Having an optimistic attitude is what will see people through an illness or problem.

If I had been asked that question the answer would have been 'no'. Reason? I can't go in a supermarket without an anxiety attack happening and having to leave the building.

melbi_uk

sardine wrote: »

I fully understand where you are coming from, but there does seem to be a cross link between knowing what is likely to get you through the assessment and the integrity of the claimant in not wanting to describe his/her day to day life in anything but a totally honest format.

As has been mentioned before on several threads, people do try and put a brave face on, they can then come across as being seen fit for work.

Taking strong painkiller before going to the assessment might make you more able to do some activity during the assessment. However, thos strong painkillers will come with side effects such as drowsiness etc. Ever red the label: 'Do not drive or operate machinery'

I took an extra tranquilliser before my assessment, had I not then I doubt the assessment would have taken place. Therefore, the assessor didn't see what I am really like under pressure.

Speaking of which, I still haven't heard the results :eek: