Confused about ESA

ToNik

I am a little confused with what is going to happen with my husbands ESA claim.

In Aug 2010 he had his first medical and failed on 9 points. We appealed and the tribunal is 29th July 2011.

However yesterday he had another Atos medical and the guy as good as told him he failed because he can drive and will only score the same points as last time.

So my question is even if the tribunal change the previous decision will he still get ESA stopped as the next medical is going to fail him again ?? Does he then appeal again??

He also said if he fails the tribunal he wont be able to appeal the new medical decision as my husband shouldnt of been entitled to it for the last year. Is that true ??

Thanks for reading and I hope someone can help.

sunnyone

ToNik wrote: »

I am a little confused with what is going to happen with my husbands ESA claim.

In Aug 2010 he had his first medical and failed on 9 points. We appealed and the tribunal is 29th July 2011.

However yesterday he had another Atos medical and the guy as good as told him he failed because he can drive and will only score the same points as last time.

So my question is even if the tribunal change the previous decision will he still get ESA stopped as the next medical is going to fail him again ?? Does he then appeal again??

He also said if he fails the tribunal he wont be able to appeal the new medical decision as my husband shouldnt of been entitled to it for the last year. Is that true ??

Thanks for reading and I hope someone can help.

He can appeal again, then again, then again but that dosnt mean he should, he should instead be looking at what he can do.

Cpt.Scarlet

ToNik wrote: »

I am a little confused with what is going to happen with my husbands ESA claim.

In Aug 2010 he had his first medical and failed on 9 points. We appealed and the tribunal is 29th July 2011.

However yesterday he had another Atos medical and the guy as good as told him he failed because he can drive and will only score the same points as last time.

So my question is even if the tribunal change the previous decision will he still get ESA stopped as the next medical is going to fail him again ?? Does he then appeal again??

He also said if he fails the tribunal he wont be able to appeal the new medical decision as my husband shouldnt of been entitled to it for the last year. Is that true ??

Thanks for reading and I hope someone can help.

Has he made a second claim for ESA? I'm trying to understand why there has been a second medical.

ToNik

Hi cpt. scarlet
No second claim made just the original one last year. When we queried the medical they said its usual practise.

Sunnyone thank you for our imput and he is re assesing what he can do, but when your whole life is turned upside down in a split second you need a while to get your head together.

sunnyone

ToNik wrote: »

Hi cpt. scarlet
No second claim made just the original one last year. When we queried the medical they said its usual practise.

Sunnyone thank you for our imput and he is re assing what he can do, but when your whole life is turned upside down in a split second you need a while to get your head together.

I totally understand that it takes time to have a fresh look at life when your whole life changes through no fault of your own but its stressfull and depressing to fail the ESA medical go to appeal then repeat it over again.

ToNik

Its extremely depressing , stressful and a whole host of other things but if you need the help & support (he only gets £7 a week and no hb/lha or ctb so its not about the money) then there isnt much else you can do but keep trying to keep that help.

Cpt.Scarlet

ToNik wrote: »

Hi cpt. scarlet
No second claim made just the original one last year. When we queried the medical they said its usual practise.

Sunnyone thank you for our imput and he is re assing what he can do, but when your whole life is turned upside down in a split second you need a while to get your head together.

This makes no sense!

There is no requirement for a medical to be held while your husband is awaiting a Tribunal unless there is a second claim being assessed or it has been ordered by a Tribunal, which is obviously not the case as the hearing hasn't been held yet.

Was an ESA50 completed before the medical?

ToNik

Yes , he had an ESA50 sent out around May, we filled it in and returned then recieved date for a medical all whilst waiting appeal.

Muttleythefrog

I'm thinking the same as cpt. Scarlet... I can't get my head around why there has been another medical unless a new application has been filed while awaiting appeal. If this is normal practice (a WCA while awaiting appeal) then it borders on harassment.. trying to assess your eligibility to remain on a benefit for which you're awaiting an appeal for earlier WCA. Certainly there's evidence the DWP can be pretty sharp off the mark after a successful appeal in pushing a new WCA.

Addition. It appears it can happen.
Reading http://www.rightsnet.org.uk/forums/viewthread/1283/

There's good posts in there from various Welfare Rights officers discussing the law on the matter. From my quick reading they determine it is potentially not legal and worth challenging as a practice. The most convincing case in there to me is that they may be seeking fresh evidence via ESA50 and medical to use following the appeal for a redetermination of entitlement at that or later time.

Quoting from the thread "Reg 147A(2) clearly prohibits any new WCA determination prior to appeal without the requisite worsened/new condition. That doesn’t, of course, prevent the claimant being sent for a new ESA medical whilst waiting for his appeal. But should that medical not suggest any new or worsened condition then the DM would appear unable to use it as the basis for a new WCA whilst the appeal is outstanding. He may make that new WCA after the appeal is heard but, as mentioned earlier, only where the appeal is successful"

ToNik

Hi thanks for the link Muttleythefrog. Its all rather confusing!
I can assure you no further claim was made, as we appealed we didnt need to re claim if you see what I mean?

Muttleythefrog

ToNik wrote: »

Hi thanks for the link Muttleythefrog. Its all rather confusing!
I can assure you no further claim was made, as we appealed we didnt need to re claim if you see what I mean?

lol... it's highly technical. But there's clear evidence in there that others have experienced the same as you... some of those WROs were very surprised that there appeared to be no trigger for it either like the DWP getting knowledge of notable change in condition of claimant. If they're right then he has not been re-assessed... the DWP have sought new evidence for potential future use should you succeed in appeal.

What I should say is that the healthcare professional is probably talking rubbish - they aren't likely especially well qualified to comment on health matters regarding your husband nevermind the law regarding WCAs and appeals.

My advice would be focus on this appeal and forget about the last medical. I'd ignore what he said... except regarding the issue of driving - does this conflict with claimed disabling effects... check?