Called in for medical assessment after winning esa appeal

Rose27

As always, please provide links to legislation if possible. Thanks

epitome

All I can say, is they are ALL wrong. and I'll bet none of them can provide you with any legal chapter and verse that supports their position.

I only know of a case similar, where the claimant had won appeal on old claim, whilst waiting for new claim assessment. The appeal win was processed and claimant put in wrag or SG... without cancelling the new claims medical referral.... when they did not attend the new claims WCA (like yours) the ESA claim was closed. the claimant said the same as you..."I thought it was wrong as I had won an appeal since I made that second claim" The claimant had lost the Mandatory Reconsideration when they came to me. I got the claimant good evidence which I don't have to hand right now, and when sent to the mandatory recon team the MR was then overturned and they got their ESA back.

This is why I have said what I said...that if you don't go the likely outcome is claim will be closed and then a big fight for you to get your claim open again which you should be succesful at.

But important to stress that case was different to yours, that case won appeal whilst waiting for second claim assessment and the appeal was allowed by the DM, and it was not for another few months before the WCA came around.... Your case is a WCA before the your appeal win has been allowed and processed. There is a big difference here.

Your choice... close the current claim, claim JSA while you wait for the appeal to be allowed (but it may not be allowed as I said, it may go to upper tribunal) then go back on ESA.

OR

Go to the WCA and be prepared for another fail.... I already said I have no idea what the legal situation of this would be... but be prepared for your ESA to be closed, they would pay you the WRAG arrears they owe you up to the point that your ESA was closed... no idea what would happen next.

Alice_Holt

Rose27 wrote: »

I'm a little confused, Welfare Rights, Citizens Advice and the DWP have told me that if I cancel my current claim then my old claim will be cancelled also because my new claim takes place of my old claim. I hear what you're saying Epitome but please understand my concerns. Do you have any relevant law sources to back up what you say? Do you know someone who has been in the same situation as me?

Rose, I too think that "if I cancel my current claim then my old claim will be cancelled also because my new claim takes place of my old claim", is correct.

I have amended my post 7 for clarity.
Please follow the advice of your Caseworker.
If you cancel your current claim, I think your ESA payments will stop.
Epitome usually gives good advice, but in this thread I am fearful that he is incorrect.
You are sensible in asking for references / regulations (I have supplied a link re WCA).

Have you anyone who could accompany you to the WCA?

epitome

Rose27 wrote: »

After winning my appeal, does my old claim superceed my new claim?

Yes it does, ....well to be more accurate, no it doesn't, the appeal win supercedes the decision to disallow claim 1, claim 2 if it is still open can then be either disregarded or allowed to continue (in terms of medical assessment) to see if there is any worsening.
but if you have been to and failed the new assessment, both claims could end at that point. (I don't know)

& am I right in thinking that if I attend this work capability assessment, their decision will superceed the decision made by the courts?

Possibly, possibly not, I don't know it's not a risk I would want to take. Possibly especially if the WCA and decision take place before the appeal win is allowed.

Do I have two active claims at present?

No, you only have 1 active claim, the other is "pending appeal."

You can close the current claim and this will have no bearing on the pending appeal claim...none whatsoever.

epitome

The 2 claims are two entirely seperate entities, neither of them "take the place of the other"

A claimant is within their rights to end a subsequent claim if they want to.

What then happens is that the DWP are told by the court that the decision to disallow claim 1 was wrong, and therefore there is an entitlement to ESA from the point of disallowance going forward on claim 1, which then continues beyond the claim closure request of claim 2. The only thing that would be required is that the claimant requests at point of closure of claim 2 that they are doing this in anticipation of the appeal win being processed and wish the ESA to be reopened when the appeal win is allowed.

Rose27

Just to clarify...

In my case I have won my appeal but haven't had confirmation that it has been accepted by DWP. Upon acceptance of the tribunals decision, if it happens, would it be a fight for me to revert back to my old claim, shutting down my new claim or can it just be done with a phone call to DWP, bearing in mind I have not yet been assessed for my new claim? Thanks so much for your help so far

Alice_Holt

epitome wrote: »

You can close the current claim and this will have no bearing on the pending appeal claim...none whatsoever.

It is not a "pending appeal claim" Epitome.
It is a historic claim refused by the DWP which the OP has successfully appealed to the TS.
The TS have reviewed the claim at the date of the DWP decision to decline it, and found the DWP's historic decision to be wrong. The FTT have awarded Rosie ESA for her original claim, which predates her current claim.
The DWP can only request that the UTT set it aside if the FTT have made an error in law - this is extremely rare.


"You can close the current claim and this will have no bearing on the pending appeal claim...none whatsoever."

I don't think this is what Rose is asking. My interpretation is that she wants to know if she ends her new claim will it stop her ESA payments. Can your confirm this Rose?
I think because the current claim has replaced Rosie's previous claim, if she ends her current claim her previous claim (upheld by the FTT) will not resume.
As Rose says can you provide the DWP regulations / an authoritative source to support your assumption.
Rose has told you that " Welfare Rights, Citizens Advice and the DWP have told me that if I cancel my current claim then my old claim will be cancelled also because my new claim takes place of my old claim". I think (FWIW) that this is correct.

I think that your suggestions may put at risk the OP's ongoing ESA payments. It is quite possible that if Rose cancels her current ESA claim she will need to re-apply for ESA, complete a new ESA50, have her HB ended and then need to complete a nil income form. There is likely to be a 7 day waiting period - http://www.cpag.org.uk/content/waiting-days-jsa-and-esa.
If Rose's area has moved to a UC full service area, in the interim, then her situation becomes more problematic.
She will have a 5 week wait before payment. Her HB (if she receives this) will end.For the period before a UC WCA she will likely to be assumed to have capability for work . Any potential disability premiums relating to PIP will be lost. Etc,etc

Rose - you will need to have a WCA at some point. It strikes me that this is the best time to be assessed, as you have the Tribunal Decision Notice placing you in the WRAG. You may also have your Benefits Caseworkers submission and medical evidence. I know WCA's are stressful, but they are a necessary condition for claiming ESA.

epitome

Rose27 wrote: »

If I cancel my new claim, will DWP honor the tribunals decision to award me the WRAG?

I already said this depends on the DM if they want to take it to Upper tribunal or not. If they don't take it to UT then yes the DWP would have to honor the WRAG decision.

Bearing in mind I haven't been assessed for my new claim, which was set up whilst appealing my old claim & is there a way to cancel my new ESA claim making clear that I am not fit for work but would ask ESA to continue paying me based on the tribunals decision of my old claim?

No, you can't expect them to do that. When you close the existing claim your payments will stop until the DM accepts your appeal win.

Or would cancelling my new claim, shut down both claims and disallow benefits?

Your "pending appeal" claim is not open so cannot be shut down. and cannot be affected by any request to close the existing claim.

If you don't believe me, then phone ESA and ask to speak to the Appeals department for a call back...they should at least know what I am saying is correct. That closing the existing claim wil not affect your entitlement once the appeal win has been accepted. And this time make sure you answer the call and ask them if they re a decision maker.

epitome

Alice_Holt wrote: »

It is not a "pending appeal claim" Epitome.
It will be a historic claim refused by the DWP which the OP has successfully appealed to the TS.
The TS have reviewed the claim at the date of the DWP decision to decline it, and found the DWP historic decision to be wrong.

Claim 1 is "pending appeal" i.e. "pending appeal outcome" up until the DWP accepts the appeal outcome, which has not happened yet.
DWP can ask for a WSOR from tribunal and if able to show an possible error in law can take it to the UT, in which case it will continue to be "pending appeal", if the DWP lose at UT then it will no longer be pending appeal as the DWP are bound by the UT ruling. They are not necessarily bound by LT rulings.

As Rose says can you provide the DWP regulations / an authoritative reference to support your assumption.
Rose has told you that " Welfare Rights, Citizens Advice and the DWP have told me that if I cancel my current claim then my old claim will be cancelled also because my new claim takes place of my old claim". I think (FWITW) that this is completely correct.

but you have no legal basis for that position.

I think that your statement may be incorrect, and put at risk the OP's ESA payments.

I think your statement and that of the DWP employee and CAB are incorrect none of them have provided any chapter and verse to say their position is correct, and remember, the DWP person who said this would not have been a decision maker, would just have been a "low rank and file" processor, someone who thinks they are right. like you do, like I do.

And I will say that your advice and that of the DWP and the CAB is putting the claimants claim at risk...as none of you are saying what will happen to her ESA going forward if she fails the medical.....apart from the obvious, worst case scenario, she can do another appeal on appeal rate £73.10 with continuous sick notes again.

Of course depending on what date clam 1 was initially made...i.e. if claimed before April 2017 then this outcome becomes more important...as if claimed before April 2017 she will be on £102 for WRAG...dropping again to £73 on appeal...if she follows your suggestion. Given her assessment decision was July 2017 there is a good chance she claimed before April 2017...(I think the cut off is April 3rd 2017)

Rose27

Alice Holt - Can you confirm with evidence if possible, that a claim becomes 'historic' even when the claimant is in appeal stage and has not shut down the claim?

Does making a new claim whilst my old claim is in appeals process, make my old claim historic?

Thanks