Scored 0 points at medical assessment

dookar

Muttleythefrog wrote: »

Yeah but I think the point is that JSA will tie you up to certain conditions.... if you cannot meet them then you are not entitled to JSA.

Which conditions?

rogerblack wrote: »

I've read through the JSA conditions of entitlement once or twice.

as have I

rogerblack wrote: »

Nowhere have I found that someone determined to not have limited capacity for work for ESA purposes is to be treated as if they are capable of work.

There is guidance that the decision makers should 'apply the tests of incapacity as in IB claims'

(20988 in http://www.dwp.gov.uk/docs/dmgch20.pdf )

But this specifically does not say they must use (assuming the legislation has in fact been amended to 'ESA claims') the result of the ESA test.
'as in IB claims' cannot IMO be read as 'of a recent IB claim'. It would seem to require specific wording if this was the intent, as the condition of people change, and the decision to refuse ESA may be several weeks or months ago, and if fitness for work is to be assessed 'as of IB claims' - this would be, as it is for IB, fitness at a given point in time when the claimant is applying for JSA, or their claim to JSA is being reviewed, not an earlier point in time when the IB claim (ESA now) was refused.

This means that if the JSA DM considers that the claimant would pass the ESA test (which they are not expert in), they can refuse JSA.
The claimant then would have to apply for ESA again - which they may not be eligible for, due to 6 months not having elapsed since their last determination of LCW.

Similarly, a JSA determination of LCW does not count as valid for ESA.

I'm sorry, maybe its the time of night but I really don't understand what you're trying to say here.

rogerblack wrote: »

This is actually happening - people are getting refused a claim of JSA made after an ESA failure.

Maybe so, I couldn't possibly dispute that. However, I would need specific examples before I could say such decisions were erroneous in law

rogerblack

dookar wrote: »

I'm sorry, maybe its the time of night but I really don't understand what you're trying to say here.

To recap.
You are not entitled to JSA if you have limited capacity for work - except in certain circumstances.

(up to two weeks in a year, or if you can demonstrate that you are likely to find work, amongst others.)

(For the moment, I'll rewrite IB as ESA, for clarity.

LCW is defined for JSA purposes as 'as in ESA claims'.
ESA claims test the work capacity at the time of the WCA. They don't look back to previous awards of ESA or any other benefit.

If JSA LCW is decided the same way as ESA claims, it cannot look back at the ESA LCW determination weeks, or maybe months ago, because that's not the way ESA does it.

It's got to be done afresh.
This means that the JSA DM is free to come to a different decision.

If the JSA DM does come to a different decision, then you now have LCW for JSA purposes, and you are not entitled.
(unless you win an appeal, which may take many months).

You could attempt to reclaim ESA, but if it's been under 6 months since the last determination of your fitness, you cannot claim unless you have a worsening of your condition.

I haven't actually read back through the ESA regs to see if it would be possible to argue the JSA LCW determination is binding on ESA - I doubt it.

Similarly, I've not checked the primary legislation.

If my assumption that 'the IB tests' language has been replaced by 'the ESA tests' in the actual legislation is incorrect, that raises another problem - in some areas IB is more generous.

There are conditions which it was much easier to get IB for than ESA.

If the JSA LCW test is based on IB, this introduces an area of clear water between the two benefits wider than just DM interpretation.

For example, someone who could climb 2, but not 12 steps is entitled to IB, but not ESA.
Someone who cannot kneel and bend similarly.

http://www.rightsnet.org.uk/forums/viewthread/100 , http://www.rightsnet.org.uk/forums/viewthread/1065/ are some examples of this gap.

Muttleythefrog

dookar wrote: »

Which conditions?

The jobseeker's agreement.. presumably when claiming JSA you will be expected to actively seek work and be available for work to some specifications. You'll also be required to sign on. For many who fail the WCA they simply won't be able to meet these conditions and in some cases it may even be contrary to medical advice. As a result many get advised to apply for ESA. Correct me if I'm wrong but if jobcentre staff say you've failed to meet your JS agreement then a valid excuse will not be "I've failed a WCA".

Atos_Veteran

If you think you have been short changed by Atos, why not use this Benefits & Work site link to check whether your points score is as it should be. It is also worth running yourself through this WCA tick box list prior to going for an examination. You will be using the same template as Atos use and could even present a printed copy to the Assessor. He would love that!

The link is on the Benefits and Work site in the ESA section. Go to "You can start the test here". Sorry to say I can`t post a direct link as this site safe guard regards the link as potential spam.

Better still, attach it in a Schedule of Attachments, suitably listing your prime substantive medical evidence with your ESA50 form. Send by recorded delivery and ensure the documents are present at interview and send a duplicate copy to the DWP Decision Maker immediately before to go to be assessed. That way Atos cannot "loose" your evidence. You can also render your material to an Appeal Court.

Remember that Atos are just one part of the decision making process. The Review after an assessment if you appeal is another. If that goes foul on you, you always have redress to the Appeals Service. They will also use a template similar to what is in the above link to obtain a correct outcome to your claim.

The Appeals people are the good guys. You need have no fear of them. They know what Atos get up to and they are often not amused by the way in which assessments have been conducted.

How do I know all this? Simple. I`ve been there and use the method I`ve described in this post. It worked every time for me. If you complete the test from the site I have suggested, by doing so, you will have a direct view of how the points allocation system works. On the basis of that, knowledge is power and you will then be able to strongly argue your case based on fact if you find that Atos try to minimise your illness or disablement. See how you get on with this. I think you might be quite pleasantly suprised at your result.

Above all, don`t be frightened of Atos. Take the fight to them and watch them fall over.

trish67

I urge you to appeal, I have just won my tribunal, it was my second appeal and I lost the first one, I felt certain I would lose again but didn't. I know how low you will be feeling as I have been through it twice, it's horrible. But if you are not fit for work appealing is your only way forward.

HB58

An article in yesterday's Glasgow Herald states that 60% of cases overturned on appeal had scored zero points initially.

Appeal if you believe you have good cause.

cit_k

Re fit for work via esa, unfit for JSA.
Surely when you try to claim JSA you have to sign and say you accept the terms, which include if I recall, stating you are able to work at least 16 hours.

ESA does not have any consideration to if you can work 16 hours or not.

So you may be fit for 10 hours work - but thats not enough get JSA.

Dunroamin

Atos_Veteran wrote: »

The link is on the Benefits and Work site in the ESA section. Go to "You can start the test here". Sorry to say I can`t post a direct link as this site safe guard regards the link as potential spam.
.

Which is why I've reported your post as SPAM.

dookar

cit_k wrote: »

Re fit for work via esa, unfit for JSA.
Surely when you try to claim JSA you have to sign and say you accept the terms, which include if I recall, stating you are able to work at least 16 hours.

ESA does not have any consideration to if you can work 16 hours or not.

So you may be fit for 10 hours work - but thats not enough get JSA.

Yes it is, a person may place any restriction on their availability if that restriction is due to a physical or mental condition and there is no requirement for them to show reasonable prospects within those restrictions

speedyturtle

First of all i am not the most experienced in these kind of things but i do believe in whats right and whats wrong. If you feel that u cant go for job seekers than i would strongly suggest that you go for appeal. The problem right now is that everyone in government department has got numbers and to show that they are improving on those numbers every other person who is actually unable to work is getting rejected. The main reason for that is if u get rejected and get down in the dumps like you are than they can tell you to go to work. My friend who actually cant even walk and was in such a bad health that he could have gone for dla and when he applied to incapacity, they turned him down. He was asked to put a pen in his pocket in his medical and they saw him fit for work. He went for appeal and won the appeal and right now he uses a walking stick just to go to the kitchen or toilet and needs a disable scooter to go out and still is waiting for DLA appeal. I am not the kind of person who would want people to live on benefits but i am not the kind of person who would push people to go to work who got serious health issues. If you think that they were wrong in assessing you than go for the appeal. If they want you to go somewhere far for the appeal than you can phone them and ask for help and they would provide you the money for the cab which you can claim when you reach the place of appeal.