JSA backdating whilst in ESA appeal.

jim4500

6 months a go I had an ATOS WCA. I was ill and unable to attend. I contacted ATOS to let them know before the WCA and they requested a letter from GP confirming this. I visited my GP who after an examination agreed to send a letter to this effect to ATOS on my behalf.

A month latter I received a letter informing me my ESA had been ended due to failure to attend and not supplying any reason as to why. I contacted my surgery, who had told me the letter had gone, and after some time it was discovered the letter had been left behind the reception of a different surgery to the one I attend, and never posted. I was told by the ESA advisers I would have to begin a appeal in order to send this letter in. This is what I did.

I had appealed before and had received the standard appeal rate whilst waiting for the appeal, once the appeal had been processed. It took 4 months for my appeal to be processed. During this time I had been told that to make any new claim would invalidate my appeal and would save no time regardless due to the backlog. When my claim was processed it was made clear that I would receive no payments whilst my appeal was in process.

I contacted the CAB and after a brief interview gained a full consultation. This took a month. The CAB informed me that I could, in fact, claim JSA whilst my appeal was in process without it affecting my appeal, despite the obvious conflicting requirements of JSA and ESA.

This has left me with a 6 month deficit of payments which I owe out to my utilities providers and landlord, for which I am being taken to court. I have been told that whilst I can apply for backdating, it simply won't happen. They would also require a 6 month history of active job seeking, something there was no way for me to be aware I needed to be compiling at the time.

I'm at a loss as to see how I would have been able to avoid this situation. I have made another appointment at the CAB but I'm not sure what they can do. Is this simply the way the system works?

rogerblack

jim4500 wrote: »

Is this simply the way the system works?

In short - with limited exceptions - you can only get a benefit if you have applied for it, and met the conditions.

What was the outcome of the ESA appeal - or is this still ongoing?
If your condition has worsened - you can apply again for ESA on this basis - and will when a new medical takes place - be eligible for payment.

You may have either a claim for compensation against the person who told you you could not claim JSA, or if they were an employee of the DWP, that might at that point count as a claim for JSA.

However - whether backdated or if this contact with a DWP employee can count as a claim - you run into the problem that you will indeed have needed to be seeking work.

Are you claiming DLA?
If so - there are arguments I'm unsure of about you being entitled to the hardship rate of JSA.

This will not apply if you have any savings whatsoever.
https://forums.moneysavingexpert.com/discussion/comment/63240852#Comment_63240852 is relevant.

http://www.rightsnet.org.uk/?ACT=39&fid=3&aid=603_rbm6K0p8nJ3ZoLOtVI6h&board_id=1 is a decision on a case where a security guard misadvised a claimant.

I am unsure if this is relevant in the case of JSA usually.

jim4500

All of the information has come from the ESA advice line and from ESA advisers. I have many of the conversation recorded.

The appeal is still on going. I have been advised it may take up to 18 months.

I have been told repeatedly that making a new claim would not only invalidate my appeal but that it would also set me back to the beginning of the queue, thereby extending the time by another x months depending on when I called.

As it has taken over 6 months to process the appeal I could now claim under the same condition. But this will only extend the period until a decision is made within which I will be paid no benefit.

It was only after the CAB told me I could claim JSA that anyone denied that I could. For the previous 6 months no mention was made of it. But also no mention was made I would not be paid the appeal rate, I was simply being told that my appeal was being held up in processing. The ESA guidelines quite clearly state that and appeal rate should be paid, it's only on a quite subjective interpretation of the guidelines that it was decided I would not, and this kind nuance is, obviously, well above the information an ESA advisor has access to.

ArtoDeeto

So basically your Doctors fluffed up sending the letter. Then their, to them, minor filing error has completely messed up your life.

jim4500 wrote: »

I'm at a loss as to see how I would have been able to avoid this situation. I have made another appointment at the CAB but I'm not sure what they can do. Is this simply the way the system works?

Basically your surgery F'd up because someone on the desk saw the letter as insignificant.

Sue them maybe? You don't really have any comeback against the DWP, as they followed procedure, but you could try to put your case as they are not completely inflexible.

jim4500 wrote: »

This has left me with a 6 month deficit of payments which I owe out to my utilities providers and landlord, for which I am being taken to court. I have been told that whilst I can apply for backdating, it simply won't happen. They would also require a 6 month history of active job seeking, something there was no way for me to be aware I needed to be compiling at the time.

Doctors surgery F up (not the first time).

Just lay it all out to the DWP is all I can say.

Poppie68

OP did you ask the surgery to post it, usually GP surgeries won't post letter/forms that have'nt been requested or sent directly to them.

SomebodyToldMe

Sorry to hear about your situation Jim.....I am awaiting ESA appeal- unpaid as even though wife only works 20hrs basic wage per week- I cannot get Income support, and no JSA- Dr writes notes saying I'm unfit to work!- Write to MP and see if they can help?

jim4500

ArtoDeeto wrote: »

So basically your Doctors fluffed up sending the letter. Then their, to them, minor filing error has completely messed up your life.



Basically your surgery F'd up because someone on the desk saw the letter as insignificant.

Sue them maybe? You don't really have any comeback against the DWP, as they followed procedure, but you could try to put your case as they are not completely inflexible.


Doctors surgery F up (not the first time).

Just lay it all out to the DWP is all I can say.

This is what I did. I even supplied a letter from the surgery explaining what happened. They still consider this not to be good cause.

jim4500

Poppie68 wrote: »

OP did you ask the surgery to post it, usually GP surgeries won't post letter/forms that have'nt been requested or sent directly to them.

My GP offered to send the letter direct for me, I didn't request it. The letter even had a date and instruction on the envelope to be sent, it just never was.

mel1832

Hi Jim,
Sorry to hear about your situation, unfortunately this is more common than you might imagine. I think the dwp have stopped your esa purely as you didnt attend your assessment, if this is the case your appeal will go to a judge sitting alone ( no medical member), if you have had your appeal papers through from dwp then the tribunal service will also have them, you can write directly to them with a copy of your gp letter with a covering letter asking the administration to send them with your file to a district judge and ask for an urgent hearing. This is probably the quickest route to take.
As for claiming jsa, yes you can but you will basically have to sign a contract stating you are actively seeking work and if this is not the case for youi would advise against this. This is more common for when people's circumstances have changed and are now fit to seek work. Hope this helps.

epitome

jim4500 wrote: »

I was told by the ESA advisers I would have to begin a appeal in order to send this letter in. This is what I did.

That was good advice.

I had appealed before and had received the standard appeal rate whilst waiting for the appeal, once the appeal had been processed.

You only get paid on appeal after failing a WCA. You don't ever get paid on fail to attend appeals or fail to return questionaire appeals.

During this time I had been told that to make any new claim would invalidate my appeal and would save no time regardless due to the backlog.

This is complete rubbish, You could have claimed ESA again immediately. You still can claim ESA again now and backdate it 3 months. Although you can claim ESA again you will NOT be paid until you have attended a new WCA appointment (unless it has been more than 6 months from date of decision to close your old claim), this could take anything from 8 weeks to 8 months but is generally done within 14 weeks.

You also could have claimed JSA from the end date of ESA and you would have been paid JSA whilst waiting for the ESA appeal to be over.
Neither new claim to ESA or JSA would jeopardise your ESA appeal. Whoever told you that should have a complaint made against them.

When my claim was processed it was made clear that I would receive no payments whilst my appeal was in process.

Correct.

You can claim ESA now, backdated 3 months, but the fact that you have claimed JSA might be a problem to doing this because you can't claim a new ESA claim and have JSA popping up in the middle of your claim period, have you been paid JSA at all?

What was the date of the letter that informed you that ESA was stopping for a fail to attend?

But also no mention was made I would not be paid the appeal rate, I was simply being told that my appeal was being held up in processing. The ESA guidelines quite clearly state that and appeal rate should be paid, it's only on a quite subjective interpretation of the guidelines that it was decided I would not, and this kind nuance is, obviously, well above the information an ESA advisor has access to.

No, it is set down in legislation, I could show you but I can't be bothered, no-one is ever paid on FAIL to attend or fail to return questionaire appeals.

What did your reconsideration letter say and when was that dated?

As it has taken over 6 months to process the appeal I could now claim under the same condition. But this will only extend the period until a decision is made within which I will be paid no benefit.

No, this is not the case, if it has been more than 6 months from the date of the decision to close your claim you can claim ESA again and be paid from the start of your new claim.

speedfreek1000

Right what was the date of the Failure to Attend and dis-allowance of ESA notification i.e. the date the DWP officially ended your ESA claim?

If 6 months has past since that date you can make a new claim for ESA with the same condition and it will be paid at the assessment rate until it is decided.

This is a new claim and will not effect your appeal.

The rule is you will not be paid on any new claim for ESA (you can have as many ESA claims as you like running at the same time) with in 6 months of a dis-allowance until you either pass a new WCA or appeal a failed WCA. Unless you are claiming for a new condition or can argue a worsening of the condition originally dis-allowed.

As for bad advice and backdating?

Tricky as in theory you should request it to the date of the dis-allowance citing maladministration due to incorrect advice. This will probably involve quite a fight and will require representation by welfare rights/CAB as it can be quite tricky to argue especially as it's longer than the usually accepted (in certain cases) maximum of 3 months.

You could have claimed either JSA or ESA from the point of dis-allowance - see above for why the ESA claim would not have been paid until after a new WCA.

The thing I'm really not sure on here with ESA is if that is accepted and backdated (or even the request for it) would that then stop payment on the new claim due to it being same condition within 6 months. Thus triggering no payment until a WCA assessment is passed or successfully accepted as an appeal if failed?

You need proper advice on that as I haven't a clue maybe Richie or Rodger might but that's a complex one.

With regards to rent etc is you LHA/Housing benefit/CTS/CB still in payment? If you have no other income a nil income declaration would have kept those in payment.