to unfit for JSA yet not unfit for ESA?

andy752

Ok, so the partner has been found fit for work by ATOS after wrongly only scoring 9 points and the usual lies about her abilities and claiming she could do the things she most certainly can't at the assessment etc just so ATOS get there blood money. So the decision maker chucks her off ESA despite her pointing out that her medical condition and limitations not correctly reflected by the ATOS report yet mainly stated in her doctors notes that the decision maker admitted to having but never had to use as the primary reason for making there decision.

So they tell her she now has to claim JSA despite her claiming her condition is worse than what ATOS had claimed. Well the only way you can do a new ESA claim they inform her is if there has been a worsening or missing detail in her condition since her assessment and what was in her medical report from ATOS. So she points out well her medical condition and limitations are certainly worse than as stated by ATOS despite her doctors notes (that the decision maker also had) contradicting the ATOS report so wants to make a fresh ESA claim based on her condition being worse than stated, strictly speaking a worsening so does a new ESA claim over the phone.

Only today she gets the ESA details back and a separate letter rejecting her new ESA claim stating because her recent ESA assessment (awarding 9 points) has found her fully fit for work. This is despite the information on the fresh claim correctly stating her conditions and confirmed by the doctors notes they already have anyway but never formed part of he decision makers original decision. So they tell her she can ask for a mandatory reconsideration and an appeal\tribunal after that. She will be doing this of cause but we all know that can take a year or so give or take!.

But in the meantime she now has to claim JSA instead while she appeals the ESA claim as the reconsideration & then appeal could take an unlimited amount of time. But she is or was covered by a fresh 3 month sick note and been told she cant give in the sick note for her JSA claim or even the JSA claim will be rejected as she will have shown herself as being unfit for work and won't qualify for JSA!!!.

This is a totally stupid and crazy situation, she can't claim JSA as she is unfit for and incapable of most work anyway so doesn't qualify for JSA. But on the other hand thanks to ATOS she doesn't qualify for ESA either as she is not unfit enough in there eyes despite her doctors notes confirming conditions ATOS failed to mention or correctly cover in the assessment.

So if a person doesn't qualify for ESA thanks to the lies ATOS tell yet unfit for work as confirmed by doctors notes, what the hell is a person supposed to claim as the partner has been told to either claim JSA and don't hand the sick note in or don't claim anything?!.

rogerblack

Several points.
First - your condition in your opinion being worse than you have been assessed as is not grounds to make a fresh claim and be paid if your last assessment was within 6 months.
This was a legally correct decision.

Your condition has to have actually worsened or a new condition arisen.
She can legally now claim JSA.
(while her ESA appeal for the first claim proceeds)
She has been found fit. A finding that the claimant is 'Fit For Work' - overrides the sick-note.

She cannot legally be refused JSA unless and until she fails to comply with a jobseekers direction.
She can then apply for hardship, once sanctioned.
(however, any household income at all may stop this)

Do not hand in the sick-note to JSA - it will only confuse them.

andy752

So she was probably given the wrong advice or impression saying she can try to make a fresh ESA claim then?. And no money right now to pay for anything detailed off her doctor about her various conditions. So basically it just has to be JSA for the next 6 months then?. Seeing as no chance an appeal will be sorted in that time on the previous ESA claim.

As long as the JSA claim allows her to back date the start date for JSA to that of a rejected ESA claim (near 2 weeks ago) based on appeal as her original incorrect advice on claim options I guess that won't be to problematic?. As otherwise there will be a big gap with Housing Benefit to so really needs to get the JSA claim back dated to the date the original ESA ended.

But what's upsetting her and annoying me is that the ESA decision maker acknowledged her various medical conditions as stated by the doctors notes they had and admitted she is limited in what she can do a hell of a lot. But that the decision makers options (as I spoke to them at the time when my partner got to upset to deal with them) had to be based on how ATOS (wrongly) made out how her conditions affects her ability to work. And many a persons ATOS report is based on lies and a false report on abilities etc as many know.

She has an appointment this afternoon at the JC to claim JSA, but how on earth is she supposed to claim she can do things she can't and even the DWP & ATOS report partially confirms some of this?.

A crazy and nasty situation for DWP to put people in!.

seven-day-weekend

Maybe the attitude is, whilst her condition disqualifies her from doing some jobs, it does not disqualify her from all jobs? Therefore her Jobsearch, whilst limited by her condition, could still encompass jobs she could do? And in that sense she is 'fit to work' at some jobs?

pmlindyloo

andy752 wrote: »

So she was probably given the wrong advice or impression saying she can try to make a fresh ESA claim then?. And no money right now to pay for anything detailed off her doctor about her various conditions. So basically it just has to be JSA for the next 6 months then?. Seeing as no chance an appeal will be sorted in that time on the previous ESA claim.

As long as the JSA claim allows her to back date the start date for JSA to that of a rejected ESA claim (near 2 weeks ago) based on appeal as her original incorrect advice on claim options I guess that won't be to problematic?. As otherwise there will be a big gap with Housing Benefit to so really needs to get the JSA claim back dated to the date the original ESA ended.

But what's upsetting her and annoying me is that the ESA decision maker acknowledged her various medical conditions as stated by the doctors notes they had and admitted she is limited in what she can do a hell of a lot. But that the decision makers options (as I spoke to them at the time when my partner got to upset to deal with them) had to be based on how ATOS (wrongly) made out how her conditions affects her ability to work. And many a persons ATOS report is based on lies and a false report on abilities etc as many know.

She has an appointment this afternoon at the JC to claim JSA, but how on earth is she supposed to claim she can do things she can't and even the DWP & ATOS report partially confirms some of this?.

A crazy and nasty situation for DWP to put people in!.

She will not have to claim JSA for the whole time while she appeals the ESA decision.

She will only have to claim it during the reconsideration period. If they do not overturn the ESA decision at this point then she can appeal the ESA decision and ask to go back on ESA.

She should ask to speak to the disability advisor at Job Centre Plus so that her disabilities can be taken into consideration when she makes her Job Seekers agreement.

The Job Centre are perfectly aware that there are people who are now claiming JSA in these circumstances so there should be no problems.

If she cannot attend through illness then she can advise the Job Centre that she is ill. She will have to complete a form but she is allowed to do this without messing up her claim.

Reconsideration may only take a couple of weeks and then she will be able to appeal and go back on ESA at the assessment rate.

I have not heard of anyone having problems claiming JSA in these circumstances.

If she has a gap in payments the JSA should be backdated.

As in all situations keep all benefit departments informed of all the changes as they do not necessarily contact each other.

rogerblack

andy752 wrote: »

So she was probably given the wrong advice or impression saying she can try to make a fresh ESA claim then?. And no money right now to pay for anything detailed off her doctor about her various conditions. So basically it just has to be JSA for the next 6 months then?. Seeing as no chance an appeal will be sorted in that time on the previous ESA claim.
<snip>

She has an appointment this afternoon at the JC to claim JSA, but how on earth is she supposed to claim she can do things she can't and even the DWP & ATOS report partially confirms some of this?.

Housing benefit can be claimed on the basis of a low income. You don't have to be in receipt of benefit.
JSA backdating is - as I understand it unlikely if you were not looking for work over that period, and can document it - unlikely.

If she was given advice that she can make a fresh claim for ESA, simply reiterating her existing conditions that she outlined in her prior application for ESA, perhaps supplying further evidence about them - then yes, if it's been under 6 months since she was disallowed benefit - she will essentially never succeed - who advised this?

Your condition needs to have worsened, or a new condition arisen for a fresh claim to have a chance of succeeding for a new claim within 6 months.

The proper remedy for a bad decision within 6 months if there are no new or substantially worsened conditions is an appeal against the original decision.

Indie_Kid

pmlindyloo wrote: »

If she cannot attend through illness then she can advise the Job Centre that she is ill. She will have to complete a form but she is allowed to do this without messing up her claim.

If she does this, a sick note is not required. She can declare 2 periods of sickness of up to 14 days in a year.

andy752

So she, well we as I had to go with the partner to the Job Centre to sort the JSA claim as she suffers from depression, panic attacks & anxiety attacks and has problems reading and understanding certain things as well as mobility problems. Told the person she seen about the ESA issues and what the ATOS report said and did not say and failed to cover and mention with some of her various medical conditions and disabilities etc. Well even they said she should pursue an appeal against being taken off ESA.

Seems the ESA more gets transferred over to JSA so the JSA start date should be the day after the ESA claim finished even though that was some 2 weeks ago and therefore the JSA gets backdated?. Besides, she only got the P45 today anyway and needed that for the JSA claim I gather?. Asked to see a disability advisor which I think is being sorted or will be.

But what's causing a major problem is the appointment times they are giving her. As said she can't go alone to the Job Centre due to mobility problems and risks of panic attacks, anxiety attacks and depression etc when having to deal with a lot of issues and places she is unfamiliar with and so needs me to be with her, this is worse for her dealing with something new like this. Besides, she also has problems reading (dyslexic) and often has me checking over forms etc with her for her so she can be fully sure she understands what she is agreeing to and signing for. Now we also have a child at school that 1 of us (mostly me) takes her to school. The appointment times they are giving her (that they won't budge on) are conflicting with the school start and finish times that are and will cause major problems as she can't really go the JC on her own for the above reasons and needs me to go with her but this will cause problems taking the daughter to school as there is nobody else available to take her. The JC is pretty much saying well if she can't make appointments at any time they give her (public transport only goes that way to the JC every half hour to) then she is not making herself available for work for the required hours and conditions and will be taken off JSA if she doesn't make those appointments!. But I'd have thought the JC has to take things like the school run into consideration when you have children that need taking to school when allocating appointments?. And as said, due to health and disability matters she can't (certainly in the short to medium term) attend the JC appointments by herself.

Going back to the ESA appeal, the JC said if she gets the mandatory consideration refused she can then go to appeal over the ESA claim but has to stay on JSA for the entire appeal period?. Is this correct as it was posted above that she could then ask to go back onto ESA (at a reduced appeal rate I guess) until the appeal is heard?.

sleepless_saver

andy752 wrote: »

Going back to the ESA appeal, the JC said if she gets the mandatory consideration refused she can then go to appeal over the ESA claim but has to stay on JSA for the entire appeal period?. Is this correct as it was posted above that she could then ask to go back onto ESA (at a reduced appeal rate I guess) until the appeal is heard?.

JC staff were wrong, she can go back on ESA if she appeals following refusal at mandatory reconsideration. See U7005 in link to government guidance.