ESA appeal and backdated payments

fishyonthedishy

I wondered if anybody could advise on backpayments after my ESA appeal was accepted at the Tribunal hearing earlier this week. Here are the main details/timeline of my ESA claim:

1/ Had ESA claim accepted in August 2011, and that I'd receive £67.50 (income related ESA) from week 20, May 2011.
2/This was a new claim and my first time claiming benefits.
3/Claim is due to mental health issues, not physical.
4/Had ATOS medical assessment in first week of January 2012 and scored 0 points.
5/Decision from DWP received 4 days later saying ESA would be stopped.
6/ Appealed against the decision, which was accepted and had Tribunal hearing this week (August 2012).

This is the decision notice I received straight after the Tribunal hearing had finished:

DECISION NOTICE

1.The appeal is allowed
2.The decision made on xx January is set aside (this was the DWP decision 4 days after ATOS medical assessment)
3.Mr XX is entitled to Employment and Support Allowance (ESA) with the support component.
4.This is because insufficient points were scored to meet the threshold for the Work Capability Assessment, but regulation 29 of the ESA Regulations 2008 applied.
5. No descriptor from Schedule 3 of the ESA Regulations 2008 was satisfied but regulation 35 of the ESA Regulations 2008 applied.
6.The Tribunal recommends that the Department does not reassess the appellant within 6 months.
7.The Tribunal received cogent oral evidence in relation to mental factors.

END


I've phoned DWP several times to clarify when the Support Group payment of £34.05 would be backdated to, but they were not able to tell me.
I have read that as a new ESA claim, it would be backdated to the 14th week of the claim (week 34, 2011).
I have also read that it would be backdated to the DWP decision in week 2, January 2012 (4 days after ATOS medical assessment).
Any help about when the money will be backdated to would be really appreciated, thanks.

Muttleythefrog

Sounds like the DWP ESA call centre staff are improving not one iota.. this is a very simple enquiry they should be able to answer in their sleep. As it was a new claim then for financial purposes the decision will be regarded as applying at beginning of week 14. Therefore this is where you should get the additional monies owed backdated to. In the future at reassessment should you fail WCA and appeal successfully then the date for financial purposes would be the date of the DWP decision. You may be entitled also to Enhanced Disability premium and if so that should automatically be added and also backdated.

To add, it is my understanding that the tribunal found you met the exceptional circumstances criteria that 'if you were not found to have limited capability for work (refer regulation 29)/work related activity(refer regulation 35) then, due to medical circumstance, there would be significant risk to any person'. (my paraphrasing).

fishyonthedishy

Thanks Muttleythefrog - yes, I agree that it's really poor that after calling DWP twice to clarify what financial implications the Tribunal decision would have, one person said it would be week 2 of 2012 when DWP decision was made, the other person simply didn't know, asked an advisor then said it all depends on circumstances and the time it takes for everything to be sorted and payment to be made "can take some time".

You're correct re. the decision - the Tribunal decided that exceptional circumstances were present and that rule 29 and then rule 35 applied.

Thanks

Muttleythefrog

Yes.. the process certainly is a burden that one can do without. The frequency of reassessment can be a real barrier to progress with MH problems. The DWP call centre staff regarding ESA are especially poor though... many seem to have had minimal training and it seems extremely common for the caller to know more about the benefit that the person they're calling for assistance. What is evident though from what you say is that, like in many cases I see just on MSE, rather than tell the caller they don't know the answer sometimes they make an incorrect one up.

I should warn you that processing the tribunal result may also take significant time.. recent threads on here suggestive that perhaps even 3 months.. so if you're getting assessment rate ESA due to continuing to supply sicknotes then continue to supply such sicknotes until they've processed the appeal result.

fishyonthedishy

Just to update the thread:

Last week I received a letter from DWP saying that my sick note was running out and I had to send in a new one. I called them and explained that the Tribunal had accepted my appeal and that I was told I wouldn't need to send in any more sick notes. They asked me to send in a copy of the tribunal decision which I did. They then confirmed (by phone) a few days later that they had extended my sick note for another 6 weeks, and by then everything should have been processed and finalized.

I received 2 letters from Job Centre Plus this morning, confirming that the tribunal decision has been accepted.
Very relieved to have it in writing, and time wise 17 days from the tribunal hearing to confirmation is a lot quicker than I'd expected.
The payments have been backdated to the 14th week of original claim (14th week = 53 weeks ago)
I have been on the assessment rate up until the tribunal hearing (£67.50, now £71), so the amount of money to be backdated will be for the extra components that the tribunal decided I needed after my appeal hearing :
Support Group (£32.35, now £34.05)
Disability Income Guarantee (£14.05)
So a backdated payment of a much needed ca. £2,500.


Thanks again Muttleythefrog for your excellent advice

Baggies

Hi, my questions are roughly the same as 'fishyonthedishy'
Was accepted to claim ESA in June 2011 (£67.50 a week)
Went for medical in November 2011 (scored no points)
Logged an appeal
Appeal heard 3weeks ago (which i won)
The letter that i got on the day & also a more or less the same copy recieved through post two days later, states:

The appeal is allowed
The decision made on ??/??/?? set aside
Miss ???? is entitled to ESA with the support component
In applying the WCA 24 points were scored from the activities & descriptors in scheule 2 of ESA regulations 2008 made up as follows:
1(a)(ii) 15 points
2(b)(i) 9 points
The following activity & descriptor from schedule 3 of the ESA regulations 2008 applied:
1(b)
It then mentions a few things about my illness & then finishes with
The tribunal recommends that the department does not reassess the appellant within 24 months.

Any information regarding what all this means & what catergorie i fit into, what happens next & when i can expect to hear from DWP would be very much appreciated.

Muttleythefrog

Baggies wrote: »

Hi, my questions are roughly the same as 'fishyonthedishy'
Was accepted to claim ESA in June 2011 (£67.50 a week)
Went for medical in November 2011 (scored no points)
Logged an appeal
Appeal heard 3weeks ago (which i won)
The letter that i got on the day & also a more or less the same copy recieved through post two days later, states:

The appeal is allowed
The decision made on ??/??/?? set aside
Miss ???? is entitled to ESA with the support component
In applying the WCA 24 points were scored from the activities & descriptors in scheule 2 of ESA regulations 2008 made up as follows:
1(a)(ii) 15 points
2(b)(i) 9 points
The following activity & descriptor from schedule 3 of the ESA regulations 2008 applied:
1(b)
It then mentions a few things about my illness & then finishes with
The tribunal recommends that the department does not reassess the appellant within 24 months.

Any information regarding what all this means & what catergorie i fit into, what happens next & when i can expect to hear from DWP would be very much appreciated.

Last bit first.. could be many weeks.. some reporting many months before the DWP act on the decision which will have been sent to them swiftly by the tribunals service. Therefore if you've been sending sicknotes to get assessment rate ESA while appealing then continue to do this if current one runs out... until they do process the result and sort the new payments (at which time they should backdate monies owed to you too).

The decision. The tribunal found you are entitled to the Support Group... and therefore that's where the DWP should stick you when they get their admin sorted. That decision to put you in support group will replace the decision made by the DWP at the time they made it... so you can expect a year of backdated owed monies when they get around to it.

Now the technical aspects of the decision.

Descriptor 1(a)(ii) was found to apply to you. That is specifically "You cannot repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion."

Descriptor 2(b)(i) was found to apply to you. That is specifically "You cannot, for the majority of the time, remain at a work station, standing unassisted by another person (even if free to move around) for more than 30 minutes, before needing to move away in order to avoid significant discomfort or exhaustion."

These descriptors relate to qualifying for WRAG... to qualify for WRAG you need to score 15 points or more from the WRAG descriptors... these two descriptors attract 15 and 9 points respectively. Therefore the tribunal found you were entitled to qualify for WRAG.

However... they also found Support Group descriptor 1b applied to you... specifically "You cannot repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion". You will note that this also happens to sound identical to the WRAG descriptor they found applied to you scoring 15 points. Some of the Support group descriptors also happen to be 15 point scoring WRAG descriptors. If you qualify for support group then you'll be placed in that instead of WRAG... as is the case here.

I assume that makes sense.. you obviously have notable problems relating to standing and mobilising?

The tribunal recommends that you are not reassessed for 24 months. On ESA reassessment is regular. The DWP do not have to agree with this recommendation of 24 months. The decision that you are entitled to Support group however they do. Expect to hear from the DWP on that matter sometime in this lifetime!

(Refer to appendix 11 and 12 for the WRAG and support group descriptors in this link http://www.lawcentreni.org/EoR/benefits-and-tax-credits/employment-and-support-allowance.html)

siera12

hi, i won my appeal for esa 2 week ago and was wondering how long it takes to receive the backdated money. thanks

Muttleythefrog

siera12 wrote: »

hi, i won my appeal for esa 2 week ago and was wondering how long it takes to receive the backdated money. thanks

Some people are reporting months for the DWP take process the appeal result. Expect weeks.

epitome

Copied from a different thread: All if not a lot of what you need to know:

Your tribunal should inform the DWP but DWP take up to a week to process incoming post (so that it appears as received in notes), so whilst you may have your letter the DWP may not have processed theirs...and that assumes they do get one from tribunal. Many times the DWP for whatever reason do not get the tribunal letter for 2 weeks or more - if ever. In these situations, you can send the DWP your letter or have it emailed from a Jobcentre to the BC. Once the BC have the letter as received they have to process it to a DM to authorise the change of award and calculate the arrears. This is usually done within a further week.

If it was a new claim the arrears are backdated to the 92nd day of the claim.
If it was an IB migration or a previous WRAG/SG award was in payment the arrears are to the start of the appeal period.

Conts or IR makes no difference, there will be arrears for both.

Whilst technically you no longer have to supply sick notes. Until someone has updated the computer with your new entitlement, the computer will still require sick notes to issue your forthcoming payments....and they will only update the computer once they have seen the evidence.
no sick note & no update to set sick note requirement to nil = you won't get your next fortnightly payment

I recommend you phone ESA to ask if they are aware of the appeal win yet. If not (depending on how desperate you are for the increased award) you can ask them for a jobcentre appointment to email your letter to them.

If they are aware, give them a week from the date they became aware and then ask for call back to chase on when your weekly rate will be updated.

The arrears are different kettle of fish, sometimes these are done at the same time as the increased award, and sometimes they will be dealt with seperately and have a slightly longer turn-around. Also the arrears could be witheld pending a check on any previous overpayments. Overpayments will be checked by Debt Management ...which is a DWP dept you can look for on google, if you get a letter saying your arrears are witheld for an overpayment check ......you can contact debt management yourself to confirm if there are any overpayments.

booogie123

can some one give me some advice please i was on is with a premium of 41.00 per week for being sick i was told i was being migrated over to esa and asked to attend atos where i scored 0 points ,i appealed and it went to the tribunal which i won ,whilst on appeal i was told i would get 101.00 esa assessment rate per week this is where i get confused everyone is saying they got 71.00 whilst on appeal and the arrears due back are 28.00 per week but it works out i was missing my 41.0 0per week my premium will i get this amount back in arrears ?thankyou for any advice given