ESA Tribunal Again?

SaveMeDo

Hi

Long time since I posted on here!

I claimed ESA about 4 years ago, 0 points at the medical, 0 points at MR, won at the tribunal, put in support group (thanks BTW).

Last Friday attended medical which went badly, like the first one did, and I'm expecting 0 points again. (D!jà vu all over again)

So here is the question, if, when, I go to the tribunal again, can I cite the previous win, my condition is worse now than it was then.

And, how many times do I have to win at the tribunal before the DWP get the message? (assuming I win again of course!)

Many thanks for any help given.

SaveMeDo

Hi Penitent

Yes I'm worried about the lack of new paperwork, I had a massive amount the first time, didn't help with the DWP, but the court was impressed.

Nearly all my appointments now are made on the phone or scheduled so no paper, I have also realised that doctors don't like to put things in writing unless they absolutely have too.

I still have all the paperwork I had at the first hearing, and my GP will support me again.

I would have thought that just showing that I won the last case, and showing that I'm still being treated would be enough?

Thanks for any help.

SaveMeDo

I'm very lucky, I have an excellent GP, I will of course have to ask him, but gave me a letter for the court last time, I think he would again.

I have noticed that it is much more difficult to get help with benefit problems now, rang around all last week, either no answer/machine or fobbed off/we are swamped/ call back when I have a court date.

Went on my own last time, worried sick I was! As it turned out I was fine, and more than willing to do battle again.

Alice_Holt

Why were you placed in the SG at the last tribunal, was it on the basis of Reg 35 (risk to health if you had to participate in work focused activities)?
http://www.cpag.org.uk/content/making-exception

SaveMeDo

Hi Alice

Yes, I believe it was reg 35, but they seemed to have decide to uphold the appeal before reg 35 was mentioned.

The wasn't really any explanation in the letter I got, no mention of points.

Alice_Holt

Hi SaveMeDo,

If there was no mention of the descriptors and points on the TS Decision Notice, then it's likely to be Reg 35.
Here are the SG descriptors:
https://www.benefitsandwork.co.uk/employment-and-support-allowance/esa-glossary/1353-support-group-descriptors

Bit more on Reg 35:
https://www.benefitsandwork.co.uk/news/2955-regulation-35-2-b-is-now-the-main-route-into-esa-support-group

If your GP is able to confirm that participation in WRAG activities (such as meetings, group training sessions, etc) would be a risk to your health - then that would be very useful evidence.
You could also provide evidence from family members / friends.

This is good guide to the appeal process (it concerns PIP, but the appeal process for ESA is virtually the same):
https://www.advicenow.org.uk/guides/how-win-pip-appeal

SaveMeDo

Thanks Alice.

I will read up the links.

I have an appointment with my GP on the 16 Feb, I doubt I will have the result of the medical by then, but will ask him if he will give his support in my appeal.

I will update my progress has the plot unfolds, but would love to hear from anyone who has had two or more tribunal hearing on how the second one was handled.

Thank for helping.

Alice_Holt

Sadly, it's not uncommon for this to happen to claimants in the SG on reg35.
You may remember that the ESA50 form did not have a question on risk to health, it just covers the descriptors.
(A long way down the line, but for the next ESA50 be sure to put relevant info in the other info box on the form. Include a copy of your TS Decision letter and current medical evidence to show this if you think reg 35 still applies.)

The second tribunal won't be greatly different to your first. They will likely to be asking you the same questions as the SG criteria has not changed.

SaveMeDo

(A long way down the line, but for the next ESA50 be sure to put relevant info in the other info box on the form. Include a copy of your TS Decision letter and current medical evidence to show this if you think reg 35 still applies.)

I didn't know that, It was worth starting the thread just for that bit of information, still it might help someone else.

I still have the MR to come so maybe I can enter the reg 35 issue at that point?

Thanks for helping.

Alice_Holt

SaveMeDo wrote: »

I still have the MR to come so maybe I can enter the reg 35 issue at that point?

Absolutely.
If your GP would support you, then it's worth getting a letter from him to include with your MR.

However, few decisions are changed at MR stage. Most go on to tribunal.
Once your appeal is lodged with the TS, you can request your ESA payments are resumed pending the hearing:
http://www.cpag.org.uk/content/benefit-during-employment-and-support-allowance-dispute

"Where an ESA disallowance is confirmed following an MR, ESA is payable pending an appeal against a decision that a claimant does not have limited capability for work, unless this was due to the claimant's failing to return the ESA50 questionnaire or attend a medical assessment.
It is important to submit an appeal following an unsuccessful MR as soon as possible."

For this reason I think it is worth getting an MR in asap:
https://www.leicester.gov.uk/media/178163/mandatory-reconsideration-request.pdf
- and chasing up the DWP for an MRN so you get get to appeal stage (and resumption of ESA payments) asap.

SaveMeDo

Thanks Alice.

This is all starting to feel like groundhog day!

I've been reading that the "six month rule" where you could reapply for ESA six months after losing at tribunal is no longer allowed?

Also, you can't have an "advocate" only a friend or carer at a hearing?

If that is true, wow, where is the justice in that?