Is there any point appealing?

happyandcontented

I am trying to help a friend who has just lost her ESA due to non-attendance at 2 assessment appointments. Whilst we decide if appealing is the way forward she has claimed UC.

She has mental health issues but is not on any medication nor under any specific psychiatric care. The first appointment was missed due to a good reason which was accepted, it was then rearranged but on the day she had diarrhoea and refused to go despite being told what the outcome could be. Her MH issues meant she could not be persuaded to attend.

The Mandatory Reconsideration was done and the decision upheld.

I have agreed to help her appeal but in all honesty, I can't see her getting many points from the descriptors apart from the last couple.

If she goes to tribunal she will not want to explain that she was sectioned previously ( several years ago)or give any 'embarrassing' details about her MH issues despite her sick note (issued last week for 6 months) saying she is schizophrenic. Nor will she be happy with her mother (who is her appointee) giving such detail.

At 61 I believe she would only be on the benefit till 66 (pension age) so I am wondering if it is actually worth the stress when she will get UC albeit at a much lower rate. Her living expenses are covered by her mother.

What happens when she passes (she is 83) is another issue...

Essentially, should I push her to appeal and help her through it or if the money aspect is not the issue would it be kinder to just let her stay on UC?

Am I missing something vital here?
I am clueless about the new benefits system but do have some tribunal experience (from the other side of the fence!)and can construct a decent appeal if that is the best way forward.

Any help appreciated.

Alice_Holt

1) The appeal will be about whether she had good reason not to attend the second WCA.
It is unlikely to consider likely points from the ESA descriptors, as this is not the reason for the appeal.

2) if the tribunal finds in her favour then (I think) her ESA award will not be stopped, So, at the point she claimed UC she will have been in receipt of ESA. If her ESA claim goes back prior to April 2017, she will then be entitled to an additional LCA or LCWRA element on her UC.

What ESA group was she in?
Has she has a UC WCA yet?
Would ESA Reg 29 or 35 apply (risk to health)?

I think it is worth her continuing with an appeal.
I would suggest she gets help from her local advice agency / Citizens Advice.

I would also be interested in other knowledgeable forumites thoughts on my analysis.

calcotti

I agree with Alice that the appeal will only look at whether there was good reason for missing the second appointment and whether, given her mental health issues, she should have been given another chance. If the appeal is won her previous ESA should be put back in place but she will then have to go through the normal Work Capability Assessment process to review that award. It is a long waiting time for a tribunal hearing. Convincing a tribunal of good reason if she wants to conceal many of her difficulties is obviously more difficult.

Having claimed UC she can, if she has a Fit Note from GP, ask for a Work Capability Assessment under UC. This should then happen much sooner than the tribunal is likely to take place. The WCA will then determine whether or not she gets extra money in her UC.

Unless she was getting a Severe Disability Premium in her ESA she may get more money under UC anyway.

Going to appeal may only result in a retrospective change in income for a few months so the question to consider is how much stress/distress will the process cause her?

happyandcontented wrote: »

Essentially, should I push her to appeal and help her through it or if the money aspect is not the issue would it be kinder to just let her stay on UC?.

She has no choice but to stay on UC. She cannot go back to ESA even if successful at tribunal.

happyandcontented

Thanks, I was working off the premise that if the appeal was successful then ESA would be reinstated. Is that not correct?

poppy12345

happyandcontented wrote: »

Thanks, I was working off the premise that if the appeal was successful then ESA would be reinstated. Is that not correct?

No, not until they are reassessed. The appeal is because they failed to attend.

calcotti

happyandcontented wrote: »

Thanks, I was working off the premise that if the appeal was successful then ESA would be reinstated. Is that not correct?

ESA will not be reinstated because she has, if I have understood your opening post correctly, already claimed UC. Once UC is claimed there is no going back.

Alice_Holt

What ESA group was she in?

Has she had a UC WCA yet?
Is she giving "fit notes" to her UC work coach?
What is her UC claimant constitutionality?

Did / Would ESA Reg 29 or 35 apply (risk to health)?
http://www.cpag.org.uk/content/making-exception

Is she in receipt of PIP?

TELLIT01

As the claimant has an appointee, won't it be that appointee who will speak / provide information for any appeal? If so, don't the wishes of the claimant actually become secondary to the appointee doing the best for the claimant.

happyandcontented

calcotti wrote: »

ESA will not be reinstated because she has, if I have understood your opening post correctly, already claimed UC. Once UC is claimed there is no going back.

I know that she was told by the ESA dept that making a UC claim would not affect her right to appeal or for the benefit to be reinstated.

Alice_Holt wrote: »

What ESA group was she in?

Has she had a UC WCA yet?
Is she giving "fit notes" to her UC work coach?
What is her UC claimant constitutionality?

Did / Would ESA Reg 29 or 35 apply (risk to health)?
http://www.cpag.org.uk/content/making-exception

Is she in receipt of PIP?

As far as I know she is not in receipt of PIP.

She had an appointment at the Job Centre yesterday to see the work coach who validated her identity (this could not be done online) and informed her that UC benefit would be payable from 29/8. The current fit note was given in and photocopied.

I am sorry, but I don't know what the other question you have asked means! Could you explain, please?

TELLIT01 wrote: »

As the claimant has an appointee, won't it be that appointee who will speak / provide information for any appeal? If so, don't the wishes of the claimant actually become secondary to the appointee doing the best for the claimant.

Her 83-year-old mother is her appointee and she is not really well enough to do more than oversee the financial aspects by paying her bills and organising her finances. However, apparently, the JC said that to manage the claim for UC the appointee must be computer literate and able to manage the online aspect of the claim, so it has been decided that her daughter will take over the role going forward.

So, from what I am understanding the appeal only needs to focus on providing evidence of why she was unable to attend the assessment? Perhaps a 'papers only' appeal would suffice there then?

Then, depending on the outcome she will have to attend and be assessed medically (despite having the fit note for 6 months?) and then ESA will/will not go back into payment depending on the outcome of the capability interview?

Is that a correct summation?

Thank you for all the answers and comments.

calcotti

happyandcontented wrote: »

I know that she was told by the ESA dept that making a UC claim would not affect her right to appeal or for the benefit to be reinstated.

If the decision to close the ESA claim is reversed following the tribunal the ESA will be reinstated from the date it was stopped - but only up to the date she claimed UC, however long or short that period may be. From the date UC was claimed entitlement to ESA ends.

She needs to supply Fit Notes to UC (if she has not already done so) and ask for a Work capability Assessment under UC.

happyandcontented

calcotti wrote: »

If the decision to close ESA claim is reversed following appeal the ESA will be reinstated but only up to the date she claimed UC however long or short that period may be. From the date UC was claimed entitlement to ESA ends.

I know that she definitely wasn't told that. I know the specific question was asked ''would making a UC claim affect my entitlement to ESA if I appealed and won' and she was told that it would not.

The only reason to appeal would be to try to increase the weekly benefit back to the ESA rate going forward as her UC payment is substantially less, but if that isn't going to happen, then appealing seems pointless.

Would you have a link please to any information on the above?