ESA tribunal won

flight747

My friend had failed ATOS scored 0 point last year March 2011 after sent out ESA50 form for diabetic, depressed in Jan 2011. She has appeal it since March 2011 and got her tribunal hearing last November 2011 and she had won 15 points and put on support group. Now the DWP sent her another ESA50 in last March 2012 and she had been called up ATOS again in April 2012 and failed again with 0 point and had appeal it. Went to tribunal hearing last week and award her 15 points and put her on support group but DWP sent her letter today to say that DWP won't accepted tribunal and declined her ESA and told her to claim JSA instead. She very upset and surely that DWP are NOT ALLOWED to refuse tribunal victory in twices ? And why is she went ATOS twices ?

rogerblack

To clarify the timeline - is this correct?
Jan 2011 - claim ESA
Mar 2011 - appeal dissalowance
Nov 2011 - tribunal won.
Apr 2012 - ATOS medical
Jun 2012 - tribunal won.

She's been being paid ESA at the support group rates till now?

The most recent tribunal will have only considered her condition from Apr 2012 - not earlier - the other tribunal is largely irrelevant at this point.

The DWP cannot simply ignore the outcome of the tribunal - they can appeal it - but not ignore it.
First step is to write to the tribunals service (on the address given on the decision) and ask them for a 'written statement of reasons' on the decision.

Secondly - phone up the DWP, and ask for a statement of reasons for the decision not to pay her ESA, following the tribunal saying she's due support group.

Does she have a partner?
If she has a partner, or significant savings, she may not be paid ESA, even in the support group, unless she was working before she applied for benefit.

mynameistallulah

I am interested to know the exact wording of the DWP letter - I have never seen one that says they will not accept the decision of the tribunal. Of course, they do have the option to appeal the decision, but that happens very rarely.

flight747

She doesn't have any partner. She won the tribunal twices but first one DWP accepted and backdated all her payment and then DWP disallowed her ESA on the April after ATOS failed with 0 point. However she appealed it and DWP had decided to put her to the tribunal hearing once again in june 5th and was award 15 points and she got letter today from DWP that refused to accepted her tribunal victory.

mynameistallulah

flight747 wrote: »

She doesn't have any partner. She won the tribunal twices but first one DWP accepted and backdated all her payment and then DWP disallowed her ESA on the April after ATOS failed with 0 point. However she appealed it and DWP had decided to put her to the tribunal hearing once again in june 5th and was award 15 points and she got letter today from DWP that refused to accepted her tribunal victory.

What does the letter actually say?

flight747

I just want to know if DWP are allow to refuse any outcome of the tribunal victory. She very shocked and cannot believe it. That's is so wrongful.

Why she have to go through all this again ? Surely once the first tribunal is won, then she shouldn't be allowed to sent back to ATOS for the 2nd time.

flight747

The letter just metion her ESA payment will be stopped from as date of April 19th after failed ATOS and DWP had decided to withdrawal of tribunal decision on the 5th June. We will write to you in due course of why it was turned down.

rogerblack

flight747 wrote: »

I just want to know if DWP are allow to refuse any outcome of the tribunal victory. She very shocked and cannot believe it. That's is so wrongful.

Why she have to go through all this again ? Surely once the first tribunal is won, then she shouldn't be allowed to sent back to ATOS for the 2nd time.

The first tribunal is quite irrelevant.
Tribunals look at the condition of the person at the time the original decision was taken.

They can make any decision the original decision-maker could make.
The tribunals decision means that it's as if the original decision had gone the other way - that is all.

They cannot (unlike DLA tribunals) specify a length of award.
ESA is periodically reviewed, and this review period is generally based on the recommendation of ATOS. This means that following a successful tribunal, there will often be a ESA50/medical - as the time of the review period has come up.

To add to the above recommendations - you need to expand on exactly what the letter said.

flight747

I thought that the tribunal hearing had the POWER over the ATOS/DWP decision ? She is very upsetting at the moment with a Suicidal death life threating!

mynameistallulah

flight747 wrote: »

I thought that the tribunal hearing had the POWER over the ATOS/DWP decision ? She is very upsetting at the moment with a Suicidal death life threating!

And what is threatening suicide going to do?

As noted earlier the DWP can appeal a tribunal decision, but they will not ignore it.

I do feel that you only have half the story here. Come back to us when you have the letter in front of you and tell us exactly what it says.

Muttleythefrog

As above Op... we need to get clearer facts here... I'm struggling a bit.

It is important to note:
The DWP can't ignore the tribunal decision.. they could try to appeal it but that will be uncommon as it has to be inrelation to the tribunal making an error in law (rather than that they don't like or disagree with the decision).

Re-assessment on ESA is regular... typically every 6 months to 2 years. At re-assessment any possible decision could be reached by the DWP (with ATOS help)... and a tribunal's job if such a decision is appealed is to determine for themselves what decision they think should have been made.

If a tribunal has scored her 15 points then she's entitled to WRAG.. if she has been found to meet support group descriptor(s) then she's instead eligible for that. I'm reading that tribunal has decided she is entitled to support group.. you are saying the DWP have written to indicate they refuse to accept that judgement... this is unexpected and so the actual wording is indeed going to potentially be helpful here. If you have someone else who is closer to the facts to give info here then that might help... unfortunately sometimes facts are lost (in translation) when they go party to party and as a result poor advice is returned.

If she is suicidal then good advice would be that there is probably a way forward here... quite likely a one that won't require claiming JSA.