Will they get 12 months back pay?

harveybobbles

Friend failed his ATOS medical in October 2011... Apealed... Apealed again and went to Tribunal... Tribunal adjurned as they wanted more info before making decision...

Anyway, this week they made the decison in my friends favour and he was awarded the correct ESA rate.

He's now wondering if he will get any back pay from Oct 2011...?!

miduck

Yes, assuming you mean he asked for a DWP reconsideration and then went to tribunal, he will receive back pay for the whole period.

Cpt.Scarlet

harveybobbles wrote: »

Friend failed his ATOS medical in October 2011... Apealed... Apealed again and went to Tribunal... Tribunal adjurned as they wanted more info before making decision...

Anyway, this week they made the decison in my friends favour and he was awarded the correct ESA rate.

He's now wondering if he will get any back pay from Oct 2011...?!

Depends on what version of ESA he is on, if he is now in the WRAG or the Support Group and how long he has been claiming for.

If he is on income related ESA, then yes. 10/11 to now and weekly payments.

If he is on contribution based ESA and in the Support Group then yes. 10/11 to now and weekly payments.

If he in now in the WRAG and on ESA(CB) and this was originally a new claim then he should get payments from the 10/11 to the anniversary date of when his claim started (07/12?), as his payments will be limited by the 365 day rule.

If he is now in the WRAG and on ESA(CB) and this was not a new claim but a re-assessment, then he may only receive payments from 10/11 to 04/12 depending on how long he was previously on ESA and whether this time was spent in the WRAG, again due to the 365 day rule.

In both these case, he will receive no further weekly payments due to the 365 day rule, but will receive NI Credits towards a full State Pension, unless his condition deteriorates or he develops a new one that will qualify him for the Support Group.

harveybobbles

They was on InCap for 9 years, so it was just a migration over to ESA in October 2011.

However, after they filled out the ESA50 form they were found to be fit for work.

So they asked for reconsideration: No change.

Appealed this: Went to Tribunal.

The Judge decided that they coundn't make a decision based on the info they had and they wanted to contact my friends GP for a report at the Tribunals expense, so it was then adjourned.. This was towards the end of 2012.

Tribunal was finally held this week and they had been awarded ESA.

They were told (at the Tribunal this week) that they would not have to seek work and that the award is for two years as then they would become a pensioner.

I would imagine it will be ESA IR as his wife doesnt work due to disability.

harveybobbles

Now I've seen the paperwork, it says he has been placed in the ESA WRAG..

However, he's been told that the award will be for two years as he then becomes a pensioner.

Is is possible to ask to be swapped to the Support Group?

benefitbaby

Cases that are migrated from IB are contribution-based, so as he has been placed in the WRAG payment will be limited to 365 days from the date of the original decision that was appealed. He may need to complete an ESA3 form so that entitlement to income-based ESA can be established. If he is entitled to this then payments will continue.

The tribunal will have considered whether he qualified for the support group so I am guessing as they placed him in the WRAG this was a no go. However the tribunal were only dealing with his health/limitations at the date of the decision under appeal so if his health has worsened such that he would now meet the qualifying criteria for the support group you could notify JCP of this and he will be reassessed. There is a risk with any reassessment that you may be successful, or there could be no change or they could remove entitlement again.

ebsay

harveybobbles wrote: »

Now I've seen the paperwork, it says he has been placed in the ESA WRAG..

That is worrying!

That means he will have to attend meetings at the job centre with an 'adviser'.

He will most likely be pressured into going on a work placement (working for 'free')

Failure to comply will mean his benefits will be sanctioned/reduced.

New legislation allows the DWP to keep somebody on the work placement indefinitely. Sanctions will stay in place until he complies.

He needs to appeal ASAP to be put in The Support Group.

I'm afraid his battle and struggle is not over!

benefitbaby

ebsay wrote: »

He needs to appeal ASAP to be put in The Support Group.

It is not as simple as this. The tribunal were looking at his entitlement to ESA (WRAG or SG) for October 2011. The tribunal is required to look at WRAG and SG during the appeal hearing and they have determined WRAG, so he has 2 options:

1. Request a statement of reasons for the tribunal decision and if they have erred in law, seek permission to appeal to the Upper Tribunal, or

2. If there has been a deterioration in his health since October 2011 request a supersession from Jobcentre Plus so that he can be reassessed based on his condition now - this has risks as per my post above.

harveybobbles

He did recieve a letter to say the 365 days were up.

satarical

The guy is 63 why is he still claiming ESA? He should be claiming pension credit instead.

harveybobbles

I know his wife claims DLA MRC and HRM along with her pension, so I assume they get a pension credit that way.