Should I give up on ESA?

RebTech

I have two weeks left to decide whether to request a mandatory reconsideration of the decision to stop my ESA following a face to face assessment.

Meanwhile I'm in the process of claiming contributions based JSA + UC for housing costs, a "dual claim" which the Jobcentre people say is quite unusual but appropriate in my case. (This is a full service area and they say I wouldn't get Housing Benefit alongside my CB JSA.)

The thing is, I think there's a very good chance that, if the MR was turned down (as seems to nearly always happen) and I appealed, my medical condition would have improved by the time of the hearing to the extent there would be no chance of succeeding. (My physiotherapist is very optimistic, I believe with good reason, though this is a recent development -- I first saw a new physio the day after the ESA decision date.)

The alternative, apparently, is to carry on claiming JSA+UC but supply sick notes, as long as they're appropriate, up to 13 weeks maximum. But I'd expect no longer to need them within that period.

The more I think about it the more obvious the answer seems: forget ESA, stick with JSA+UC. But it's all so bloody complicated these days I thought I should seek advice before making my mind up. Anybody?

Alice_Holt

If you appeal the tribunal will look at your condition at the time of the DWP decision not to award you ESA. It does not consider your condition at the time of the hearing. The tribunal are reviewing whether that DWP decision was correct or incorrect.

As you are currently on JSA but unable to job seek due to illness, I feel there is a risk in abandoning the ESA appeal.

I suggest you get further advice from your local CAB / advice agency.

Don't expect the DWP to change their decision at MR stage - this rarely happens. It is likely you will need to take your ESA appeal to tribunal.

RebTech

Thanks very much Alice, that directly contradicts what the physio said, which he claimed was based on experience, that a report from him should be delayed or it risks being rejected as out of date.

However, I'm still concerned that I would cease to qualify for ESA on medical grounds before, maybe well before the tribunal stage was reached, in which case I'd have gone to a lot of trouble and uncertainty for no benefit. Would you expand on what you see as being the risk in ditching ESA?

pmlindyloo

I agree with Alice that the tribunal should consider your condition at the time of the DWP decision.

Therefore a report from your physio saying how your condition is now would not be appropriate as you have improved.

If you do not feel that you did not meet the descriptors at the time of your assessment then there is little point in appealing.

You also say that you could get a fit note for 13 weeks or less and go on an extended period of sickness to complete your recovery whilst on JSA. This would seem the sensible option.

I also note that you reach state pension age in March so it is unlikely that your job seeking requirements would be too onerous if you still felt unfit for work. (Obviously if you are fit then you could work up to any age)

Reading your other threads I note you have a small occupational pension. On contribution based ESA this would not have been taken into account if under £85 a week.

But, do you know how long you will be on contribution based JSA? Did the Job Centre say that you only had 'so long' left after being on contribution based ESA for 11 months? (Must admit am unsure of the regulations regarding this)

Just thinking that if you change to income based JSA (presuming you are eligible) then your pension will be taken into account as income at the rate of £1 for £1.

Alice_Holt

The risk would be that you are claiming JSA but still not fit for work, so subject to the possibility of JSA sanctions.

Edit: Here are the criteria for ESA:
http://www.mybenefitsandwork.co.uk/med2/indexxx.php
http://www.cpag.org.uk/content/making-exception

As pmlindyloo says go through these to establish if the DWP decision is appealable.

You may wish to (gently) make your physio aware of his misconception, as this may impact on other of his patients.
This is from http://dwpexamination.org/forum/pip-how-to-guides-sample-letters/challenging-a-personal-independence-payment-pip-decision/
"The tribunal can only consider your daily living and mobility needs at the date of the PIP decision which you are appealing and not after. Therefore, you should ask that any supporting evidence relates to your situation at that time, not later."
It was the first reference I could find. The same, of course, applies to ESA hearings, I'm sure with a bit of googling you will find more confirmation. Or ask your local CAB.
One of the first things the tribunal chair will say (after introductions) is 'Mr x, we have to consider your condition and abilities at the date of the DWP decision under appeal.'

As an aside CB JSA can be paid for 6 months, CB ESA for 12 months.

RebTech

Thanks pmlindyloo, particularly for taking the trouble to look at other threads.

I'd say I still meet the ESA descriptors now, but there's a complication that's putting me off from the MR/appeal road if JSA+UC seems a reasonable option. (I made a mistake filling in the ESA50, didn't realise so couldn't correct either at the WCA or when rung with the decision.) Thanks for confirming that it seems sensible to you.

Re the pension, I lost that, or most of it, by a deduction from Housing Benefit.

No I don't know how long I'll continue to qualify for CB JSA, it's not been brought up. Having less than a month to go on CB ESA, I was surprised CB JSA was an option at all. But given the pension's previous effect on HB this might not make that much difference.

BTW, I don't reach state pension age until the end of September 2018, but I do qualify for Pension Credit in March (apparently because that's when a woman of the same age would get the state pension).

epitome

Can you tell us...
Was this your first ever ESA Medical Assessment?
Were you sending in sicknotes to receive payment of ESA or were you already in WRAG or SG?
If it was yes to above you would be eligible for payment of ESA on appeal, but only after Man Recon, and they would then backdate your ESA payments and your Housing Benefit should also be reinstated & backdated (without the need for UC).... but this does mean doing an MR and then appealing and it will all take about 4 - 5 weeks of no benefits, then all of it backdated.

Your ESA Man Recon, and the Appeal hearing will consider your condition as it was 2 weeks ago. Now is the time to get any evidence, reports from your physio written up, to present to your tribunal in the future.

Specifically why do you think you should have qualified for ESA? It may be that whatever your physio writes will be irrelevant or not sufficient to award you ESA. Google "ESA214"


If you claim JSA you must be available for work now and looking for work now. Some jobcentres are not enforcing this, but this is what is required and most jobcentres will be following correct DWP procedure for JSA new claims. The only time according to DWP guidance that you can show a jobcentre, on a JSA claim, a sicknote and expect your payment of JSA to continue, is after you have received your first payment of JSA (not a Short Term benefit Advance).
Also if you present the Jobcentre with a sick note, the jobcentre is required to consider if your condition has worsened or different since your ESA decision was made. If the jobcentre does not consider that you have worsened or are different medical condition then they will tell you that you have to continue to look for work....(you can Man Recon the JSA decision..if you think you have worsened or have different condition). But JSA will stop paying you unless you continue to look for work.

Alice_Holt

RebTech wrote: »

No I don't know how long I'll continue to qualify for CB JSA, it's not been brought up.
Having less than a month to go on CB ESA, I was surprised CB JSA was an option at all. .

A total of 6 months payments for CB JSA.

In which case staying on CB JSA may be more financially sensible.
You could put the scenarios into a benefit entitlement calculator to check.
https://www.entitledto.co.uk.//.

If you didn't clearly show on your ESA50 form how you should have qualified for ESA, then that does make any appeal more difficult. Faced with a ESA50 form that doesn't get you to 15 points (or Reg 29), and a failure at WCA you will need very compelling evidence to succeed at appeal.

epitome

Hmmm,

The "less than a month remaining on ESA C" puts a new perspective on things.

Theoretically you could have your ESA C & IR and HB reinstated, and then you could (after 12 weeks gap of ESA C being £0.00 ) ask for ESA C to be looked at again for another 1 year....(no guarantee it will work for you).

Or you could go with JSA C (and look for work)

Up to you.

RebTech

Thanks for all replies so far, I'll need to spend a while studying the last two or three and I've had enough for today!

One point meanwhile however, re possible success at MR/tribunal. I hadn't previously considered Reg 29 but using the link above (thanks again Alice) I saw this: "In one Upper Tribunal case, an increase in the frequencies of exacerbations of pain was sufficient to count as substantial harm." My problem is not being unable to do things (walk, stand, climb steps, sit for long) but doing them without causing the condition (similar to arthritis) to flare up and I believe I DID make that clear, but it wasn't taken into account. So...