Mum's failed work capability assessment AGAIN after tribunal win 2016 for ESA .

JadeLouise

Hello,
I was lucky enough to receive some serious amazing help on this forum 3 years ago in 2016 when my mum scored 0 points for her work capability assessment for ESA, and we spent 7 months in an appeal process.

Well here we are again ! After the tribunal case, whereby the appeal was allowed and the original decision set aside, she was scored 18 points from Schedule 2 of the ESA regulation with the document stating, "By reason of learning difficulties xxx xxxxxx is significantly limited as above. As a result the above descriptors are satisfied." She was placed into the work-related activity group for the ESA and it was recommended she be assessed again after 24months. We were not aware that we could appeal the group type, if we had known we would have done because the amount of stress caused to my mother during these last to years as she has needed to go to work-related activity meetings, is saddening. Her twin sister with similar learning difficulties is in the support group and is not required to attend regular assessment

For more background information, the original thread can be found here https://forums.moneysavingexpert.com/discussion/5457238/mothers-esa-medical-failed-and-reconsideration-failed-also-help

My question now is, what benefits can she claim whilst we await the appeal process?
I have spoken to my local CAB and they pointed me in the direction of Turn2Us. I spent 40 minutes on the phone to a lady and was eventually informed she would have to claim universal credit and any existing benefits (apart from her PIP) would be immediately stopped until universal credit is set up in 5 weeks. However, she could not explain what would happen if the appeal was won ? Would they then add the ESA under universal credit or would all other benefits be moved back to stand alone?

Once again, this whole process is causing my family, especially my mother, great emotional distress and I am trying to support them best I can but I just don't have the answers. Last time she claimed job seekers allowance and despite being a hard time emotionally, the logistics were not too difficult to navigate.

Any help would be immensely appreciated. Thank you in advance.

pmlindyloo

Does your mum receive the Severe disability premium with her ESA?

She should be receiving this if she claims PIP daily living, lives alone (or the person(s) living with her also receive(s) a qualifying benefit - AA/PIP daily living/DLA mid rate care) and
no one claims Carer's Allowance for her.

If you're not sure just tell us who she lives with and whether they claim any benefits.

If she does claim SDP with her ESA then she will not be able to claim Universal Credit but can claim JSA instead or not claim anything during the MR and have ESA reinstated when accepted for appeal.

If she does not have the SDP with her ESA claim then she either claims nothing during the MR or claims UC.

We really need to check her particular circumstances.

JadeLouise

Hi pmlindyloo,

No, she does not receive the SDP for her PIP, only the enhanced rate of the daily component and standard rate for mobility. She lives with her mother who does not claim any disability benefits and is not entitled to the carers allowance.

If a claim was made for UC, and the appeal is won, what happens to the ESA? is UC the same as job seekers allowance or is it just called UC and the same conditions apply?

Thanks very much .

pmlindyloo

I am assuming that your mum receives income based ESA, has no savings over £6000 and receives no other income other than PIP (which will continue separately)

The amount of money she will receive under UC will depend on whether she is found, fit for work, has limited capacity for work (old WRAG) or has limited capability for work and related activity (old support group)

So,
during appeal process she will receive £317.82 per calendar month
if found to have LCW she will receive £443.93 per calendar month
if found to have LCWRA she will receive £654.02 per calendar month.

Basically UC is made up of a standard allowance plus elements (disability elements in you mum's case)

As regards the conditions for UC your mum will be placed in a conditionality group according to her existing circumstances although allowance for her disabilities should be taken into account whichever group she is first placed in.

I will try to find a link so you can read more about it.

To be honest, it is best to wait until after the appeal to see what she is awarded rather than worry about what kind of work activities they will make her do.

Hopefully someone will check my figures but you could put different scenarios into the https://www.entitledto.co.uk benefit calculator to find out yourself.

Come back if you need any more help with the appeal although I am guessing that having done it once you might not need any more help.

CAB's website is a good place to start:

https://www.citizensadvice.org.uk/benefits/universal-credit/

Just reread your post..

Once on UC you do not go back onto ESA. Whatever the result of the ESA assessment is the potential outcome will be reflected in the disability element added to her UC.

JadeLouise

Thank you again that is really useful. During the appeal I assume she will be asked to look for work as she did when claiming job seekers allowance if we apply for UC? She has had a letter today to state her housing benefit and council tax support has also been stopped. I assume we will also apply for this again under UC ?

pmlindyloo

I am not sure on what basis she claims housing benefit in the situation you described - living with her mother.

Or do you mean the tenancy is in your mum's name and your grandmother is her non dependant?

OK, so presuming she is receiving HB correctly then this will stop and be paid as part of UC - the housing element. It will be paid at the same rate as before but each calendar month.

Council tax is not part of UC so she needs to apply for this separately - a change of circumstances.

When on UC a claimant has to make a claimant commitment detailing what will be required of them. This will be discussed with a work coach at the Job Centre after the UC application has been made. Your grandmother, as her appointee, needs to attend with her. The claimant commitment should take account of her disabilities and, of course, the work coach should be made aware of her appealing the ESA decision. It is difficult to say what your mum will be expected to do. One hopes that it will not be anything too demanding. She needs to produce a fit note from the doctor for UC because of her disabilities.

It is possible that other posters may be able to offer further insight into what they were required to do whilst claiming UC whilst waiting for an ESA appeal.

This is quite a murky area to be honest. Because of the long wait for tribunals it is entirely possible that your mum may be called for a work capability assessment by UC after about 3 months. The result of this would override the tribunal decision because they would be assessing her at a later stage. (Might be a good thing)

If there is any way that your mum can manage without her ESA whilst the MR is done then this is the route that I would suggest. She can claim HB and CTR based on a low income and still be awarded these. The only thing she would lose would be her ESA. MR should be a matter of weeks, not months and once her MR decision has been made then she can reclaim ESA at the assessment rate once her tribunal appeal has been accepted and have it backdated to when it stopped.

UC will not be paid for 5/6 weeks although you can get an advance which has to be paid back (see CAB link)

A tough choice really.

Please wait for other posters' experience of the situation and hopefully, other posters thoughts/advice.

Alice_Holt

I'm sorry to hear that your mum has to go through an appeal again.

She has a couple of options:

1) She can have ESA resumed once her appeal has been lodged with the Tribunal Service.
There will be no payments whilst the DWP are looking at their decision again (the MR stage), but once the MRN received (usually the decision is unchanged) and the appeal lodged her ESA payments can be resumed at the assessment rate. She will need to supply fit notes to the DWP. If she can get a fit note backdated to the time her ESA stopped, then (I believe) ESA payments will also be backdated to that date.

She needs to visit the council to get her HB and CT support resumed. She should do this asap. She will need to explain why her ESA has been stopped and complete a nil income form.

With this in place she should then continue to receive ESA (but at a lower rate of £73.10 a week) and HB and CTr whilst waiting for the tribunal hearing date.

2) She can claim UC. The rate is also equivalent to £73.10 pw. Her housing costs will be paid through UC rather than HB. There is a wait of 5 weeks before the first UC monthly payment (she can ask for an advance). Having failed the ESA WCA she will be expected to job search. However if she produces a fit note, her work coach should reduce her work commitment. Do note that work coaches seem to have a lot of discretion under UC - good if her work coach is reasonable, not so good with an unsympathetic work coach.
She will be expected to manage her claim, and communicate on-line. This could be a problem with learning disabilities or if she doesn't have a computer / smartphone.

CPAG have a useful article on trying to speed up the MR process if your mum decides not to claim UC:
http://www.cpag.org.uk/content/benefit-during-employment-and-support-allowance-dispute

https://www.citizensadvice.org.uk/benefits/sick-or-disabled-people-and-carers/employment-and-support-allowance/while-youre-getting-esa/esa-money-and-benefits-during-reconsideration/
http://www.cpag.org.uk/content/ask-cpag-online-can-you-get-esa-while-you-are-challenging-decision

It's not a clear cut decision, as the DWP have no deadlines for responding to a MR. You would need to chase the DWP up, and perhaps involve your MP if they are dragging their feet in producing the MR notice; and ask the MR to be considered urgently.
But if your mum couldn't cope with online job searching / communications, and more frequent interaction with a job coach then UC will be problematic. Once a UC claim is made, it is not possible to go back to legacy benefits.

Help with Council Tax needs to be claimed through her council.

If your mum decides to claim UC, I think she should still proceed with the ESA appeal. The LCW rate which pmlinyloo quoted is only payable for claimants who were receiving ESA before April 2017 and move onto UC with that award still in place.. If her appeal is successful then her ESA eligibility will be reinstated and the award will be continuous from before April 2017. She will therefore get the £443 rate.
If your mum doesn't appeal then she moves onto uc with no ESA award having been found fit for work. Even if she is subsequently found not fit for work under UC, her UC payments remain at £317pm.
https://www.turn2us.org.uk/Benefit-guides/Universal-Credit/Additional-Elements-of-Universal-Credit
" From 3 April 2017 the limited capability for work element will not be available to claimants who claim UC on or after this date, unless they were in receipt of a work related activity component in ESA immediately before they claimed UC"

JadeLouise

Thank you Alice, one again for your kind and extensive input on this situation this time around.

I had read about getting ESA at the assessment rate after the MR notice but didn't understand if this applied to her

"You’ll only be paid ESA if this is either:
the first time you failed the work capability assessment
the first time you’ve failed the work capability assessment since a previous decision that you met it"

Having read that back, I would believe that she does fit into that category for the second option. I assume that if we need to appeal, once we receive the confirmation of their receipt we need to call the DWP and supply a fit note from the doctor.

Last time, when she had a work coach under JSA, he was very unsympathetic and nasty and actually ended up getting sacked because the security guard reported him (oh the drama)! Consequently, this has stirred more anxiety over the coaching commitments. Last time, she missed many many appointments and of course was sanctioned.

She isnt able to use a computer, I have sat for hours assisting in this. I wonder if we would be able to help her or would this just go against the situation?

We need to think and fast. Thank you again for all the help.

Alice_Holt

Since you mum was in receipt of ESA and then failed her WCA, you are correct in thinking that she can reclaim ESA when the appeal is underway. (The situation would be different if she had failed to attend her WCA).

My impression would be that reclaiming ESA may the better route, (if your mum can cope without ESA payments during the MR period). I suspect that (perhaps) having to repeat the JSA experience whilst on UC and having to communicate though her UC online journal would be difficult for her. And of course UC has a 5 week wait before payment (even assuming the UC application goes through smoothly).

An important first step is to get the HB and CT reduction unsuspended and in payment by completing the councils nil income form. Here is an example from one council:
https://www.leicester.gov.uk/your-community/benefits-and-support/advice-and-guidance/nil-income-help/

Since most MR's are refused by the DWP (80%), I would tend to get the MR in asap and try to get past that stage in the appeal process as quickly as possible.
Here are some proforma to use:
https://www.leicester.gov.uk/media/178163/mandatory-reconsideration-request.pdf
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/683380/if-you-disagree-with-a-decision-made-by-dwp.PDF
And: https://www.gov.uk/mandatory-reconsideration

When you write the MR for her:
Emphasis that her health conditions and her learning disabilities have not changed since 2016 (as daft as that sounds!);
Enclose a copy of the 2016 Decision Notice;
Enclose a copy of the submission you made to the Tribunal Service in 2016:
Explain how upset and troubled she was by having to look for job when claiming JSA, and explain how this significantly affected her health and wellbeing, made her anxious etc; (You could always enclose a letter signed by yourself describing her distress and consequent health problems during the JSA period as additional evidence).
If she has any GP / medical letters / reports at home readily available then enclose a copy.
Explain how and why the 18 points she was awarded at the tribunal still apply (Was this for Learning Tasks, Social engagement, Getting out, or Coping with change?) All 4 descriptors may apply.
I would also make the case on Regulation 29 (risk to health), and include an argument that you mum should be in the Support Group (Reg 35) as participation in work focused interviews have / would cause her significant distress and worsen her health.

Send the MR in asap to minimise the time period before she can ask for a resumption ESA.

Info on the Schedule 2 descriptors for mental health:
http://www.mybenefitsandwork.co.uk/forms/forms/formprocessorpro.php

Info on Regs 29 and 35 :
http://www.cpag.org.uk/content/making-exception
https://www.benefitsandwork.co.uk/news/2955-regulation-35-2-b-is-now-the-main-route-into-esa-support-group

Write a covering letter asking the DWP to deal with the matter asap due to the distress your mum is experiencing and her inability to cope with the alternative of a UC claim, use a computer etc .

The difficulty is that the DWP are slow in dealing with MR's and do not have a deadline to work to. So, I would also copy the MR and covering letter to her MP, explain the situation and ask her MP (if chasing phone calls to the DWP aren't working) if they can intervene to get a quick MR decision from the DWP. Unconventional, but may speed up the process.
Let us know if you do go down this ESA route, but the DWP are slow (more than 7/8 weeks) to issue their MR notice, as I have another tactic you could use at that point.


Some useful resources:
https://www.citizensadvice.org.uk/benefits/sick-or-disabled-people-and-carers/employment-and-support-allowance/while-youre-getting-esa/challenging-an-esa-decision/
https://www.benefitsandwork.co.uk/news/2955-regulation-35-2-b-is-now-the-main-route-into-esa-support-group
https://www.advicenow.org.uk/guides/how-win-pip-appeal (A guide for PIP appeals, but the process is the same for ESA appeals).
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777221/wca-handbook.pdf

Good luck.


A few further thoughts (sorry for the length of this post).
Contact her GP and in readiness for the appeal, see if they would write a letter:
a) confirming her health conditions and abilities have not improved since 2016,
b) it would be very helpful if they are able to confirm that your mum would have difficulties with the ESA descriptors awarded by the tribunal, and
c) if they are able to confirm that job searching would present a risk to your mums health (Reg 29); or if Work focused interviews would pose a risk to her mental health (Reg 35),
If they saw her during that JSA period and can confirm her distress, that would be helpful.

When this saga is over, do think about a PIP claim. One advantage is that it could provide an additional alternative income source.