ESA Appeal - Time Scale

cit_k

Chorlie wrote: »

That could be true, as you know the descriptors changed in April 2011; so when I was assessed in June 2010 this descriptor wasn't very clear and didn't fully apply, but the new descriptor has been made clearer so I feel it does apply now.

Now if as you suggest use the descriptor from 2010 that my appeal will fail, but since I had a review in June 2011 I would of thought they would of used the descriptors from June 2011, after all they would use my medical condition as at June 2011 to decide if I was still entitle to ESA and not how it was in June 2010....

But how I see it I have nothing to loose in appealing...

They will only look at the descriptors that were in force at the time of the decision you are appealing.

If your appealing a decision that took place when the new descriptor was in place, fine the new descriptor can be used.

If your appealing an earlier decision, that did not have that descriptor in place, then no, they cant use it.

So, if your appealing the 2011 decision, that had the descriptor in place, you should be ok.

If you appeal, and your already in receipt of ESA, the tribunal could ( unlikely) reduce the number of points, so you no longer even qualify for ESA at all, but its highly unlikely I would think that that would happen, but it is a risk, just so you know its not a case of nothing to lose.

Chorlie

cit_k wrote: »

They will only look at the descriptors that were in force at the time of the decision you are appealing.

If your appealing a decision that took place when the new descriptor was in place, fine the new descriptor can be used.

If your appealing an earlier decision, that did not have that descriptor in place, then no, they cant use it.

So, if your appealing the 2011 decision, that had the descriptor in place, you should be ok.

If you appeal, and your already in receipt of ESA, the tribunal could ( unlikely) reduce the number of points, so you no longer even qualify for ESA at all, but its highly unlikely I would think that that would happen, but it is a risk, just so you know its not a case of nothing to lose.

I'm appealing the decision made when they reviewed my ESA in June 2011, this decision was to leave me in the WRAG, but since some the descriptors had changed between being awarded ESA in June 2010 and the review in June 2011 I feel (maybe wrongly) that they should use the new descriptors when doing the review.

If they did this than I would drop from 15 points from not being able to walk, to 9 point from not being able to get up 2 steps (since I'm in a wheelchair), but should keep the 9 & 3 points from other areas, so would still get 21 points. Plus if they agree they were wrong and the points descriptor should be 15 points, which means they would have to consider me for the Support Group.

Also since I'm on Contribution Based ESA and I have a pension & some savings, if these new rules come into play (which I think they will) then I will loose my ESA in April 2012 anyway, so I don't feel like I have anything to loose by appealing.

NASA_2

They would have used the descriptors that were in place whenever the medical process started rather than when you actually had your face to face meeting with the HCP. I think your appeal is doomed.

Anyone can request a new WCA though and a new WCA would use the new descriptors.

rogerblack

NASA wrote: »

Anyone can request a new WCA though and a new WCA would use the new descriptors.

Can't you only request a WCA if your condition has worsened?

Or is a legislative change that interprets your condition as worse a worsening too?

NASA_2

rogerblack wrote: »

Can't you only request a WCA if your condition has worsened?

Or is a legislative change that interprets your condition as worse a worsening too?

As far as I have been able to glean from guidance documents anyone can request a new WCA - doesnt exactly have to be a reason.

Muttleythefrog

NASA wrote: »

They would have used the descriptors that were in place whenever the medical process started rather than when you actually had your face to face meeting with the HCP. I think your appeal is doomed.

Just to clarify. When you refer to the start of the medical process do you mean the first WCA you get or the current one? The Op seems to have had WCA in June 2010 (got WRAG) and then around June 2011 (Got WRAG but thinks a new descriptor for SG should apply). Are we saying the descriptors effective in the June 2011 WCA will be the ones that were applying in June 2010? (i.e. you continue to be assessed on the grounds you were originally assessed for the benefit). Am I right in saying if this is the case then if you request a WCA then current descriptors would apply for it?

If the 2010 law is applying then I think the Op might as well withdraw appeal...in fact it may even be struck out before being heard... and request a new WCA would be best course of action to try to get into SG under April 2011 law?

Cpt.Scarlet

If the June 2011 medical was done using the old descriptors, as the OP suggests, then any appeal will have to be based on the old descriptors. The Tribunal is re-making the June 2011 decision, not making a new one, so there is no way that the OP will be allowed to score points using the new descriptors, so if that is the only argument being put forward, they are going to wait a very long time, for a very quick decision, which will not be in their favour.

NASA_2

Muttleythefrog wrote: »

Just to clarify. When you refer to the start of the medical process do you mean the first WCA you get or the current one? The Op seems to have had WCA in June 2010 (got WRAG) and then around June 2011 (Got WRAG but thinks a new descriptor for SG should apply). Are we saying the descriptors effective in the June 2011 WCA will be the ones that were applying in June 2010? (i.e. you continue to be assessed on the grounds you were originally assessed for the benefit). Am I right in saying if this is the case then if you request a WCA then current descriptors would apply for it?

If the 2010 law is applying then I think the Op might as well withdraw appeal...in fact it may even be struck out before being heard... and request a new WCA would be best course of action to try to get into SG under April 2011 law?

No, what I meant was that if the ESA50 (For example) was issued in March 2011 it was the old descriptors that were used, if it was issued after 28th of June (I think that was the date but probably wrong) then it was the new ones being used.

It really was a matter of claimants falling under different rules for the sake of a day.

Chorlie

I filled in the ESA50 form (with the old descriptors) in April 2010, went for a medical in May 2010 and in June 2010 was placed in the WRAG.

April 2011 the descriptors changed.

In June 2011 I was sent another ESA50 form (with the new descriptors) to fill in for my 12 month review of ESA, I wasn't sent for another medical and in July 2011 was placed in the WRAG again (to be reviewed again in April 2013), I had to attended a Work Focused Interview in July 2011 (to be told basically they will see me again after my next review).

I've appealed within 1 month of being inform I've been placed again in the WRAG, because I feel one of the new descriptors now apply, which means I should be in the Support Group.

I was half expecting it to be turned down at Appeal and be passed to Tribunal, since it's one of those slightly hard to prove issues, but on the Medical Report I had in May 2010 the Doctor did mention / touch on the issue; so it's not that I've just made it up or it's the first time I've informed them. It's purely that the old descriptor didn't cover this medical issue, but the new one does. So I really didn't know which way it would go, but reading the above that it's the old descriptors that apply than I won't get it and if this is the case I won't take it to Tribunal after the first level of Appeal.


If the above comments are true, that it's the old descriptors that apply if awarded ESA before April 2011, than someone who is in a manual wheelchair and can push it themselves, would get 15 points on the old descriptors since they can't walk, but would only get 9 points under the new descriptors since they can push the chair but can't get up 2 steps. So each time they get reviewed for ESA they would keep it since they were awarded it before April 2011, but someone with the same disability who applies for it now won't get it since they only get 9 points......I would of thought a review was to see if they were still entitled to ESA & if so which Group to place them in and to do this they would use the current rules on ESA to decide this; but it's seems I incorrect in thinking this.

sunnyone

Chorlie wrote: »

I filled in the ESA50 form (with the old descriptors) in April 2010, went for a medical in May 2010 and in June 2010 was placed in the WRAG.

April 2011 the descriptors changed.

In June 2011 I was sent another ESA50 form (with the new descriptors) to fill in for my 12 month review of ESA, I wasn't sent for another medical and in July 2011 was placed in the WRAG again (to be reviewed again in April 2013), I had to attended a Work Focused Interview in July 2011 (to be told basically they will see me again after my next review).

I've appealed within 1 month of being inform I've been placed again in the WRAG, because I feel one of the new descriptors now apply, which means I should be in the Support Group.

I was half expecting it to be turned down at Appeal and be passed to Tribunal, since it's one of those slightly hard to prove issues, but on the Medical Report I had in May 2010 the Doctor did mention / touch on the issue; so it's not that I've just made it up or it's the first time I've informed them. It's purely that the old descriptor didn't cover this medical issue, but the new one does. So I really didn't know which way it would go, but reading the above that it's the old descriptors that apply than I won't get it and if this is the case I won't take it to Tribunal after the first level of Appeal.


If the above comments are true, that it's the old descriptors that apply if awarded ESA before April 2011, than someone who is in a manual wheelchair and can push it themselves, would get 15 points on the old descriptors since they can't walk, but would only get 9 points under the new descriptors since they can push the chair but can't get up 2 steps. So each time they get reviewed for ESA they would keep it since they were awarded it before April 2011, but someone with the same disability who applies for it now won't get it since they only get 9 points......I would of thought a review was to see if they were still entitled to ESA & if so which Group to place them in and to do this they would use the current rules on ESA to decide this; but it's seems I incorrect in thinking this.

I honestly cant see why you believe you should be in the SG, you are a manual wheelchair user who can mobilise in the chair, yes you should still get the 9 points for steps but you dont fulfil any of the SG specific criteria, can you post which one you think you fulfil?