Is there any point appealing?

happyandcontented

calcotti wrote: »

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.

Would that increase her benefit rates if awarded?

Are the descriptors the same as for ESA?

Alice_Holt

UC replaces both Jobseekers allowance and ESA. Until a UC claimant is assessed as not fit for work through the WCA, their UC job coach can ask them to job search. The WCA for UC is exactly the same as for ESA.

If she successfully appeals the "good" reason decision, then the DWP should accept that she claimed UC whilst having an ongoing ESA claim in payment. This would then mean she is placed in the appropriate UC no work related constitutionality group:
https://www.turn2us.org.uk/Benefit-guides/Universal-Credit/Claimant-Commitment-Conditionality

She may also receive the additional payment for being in that UC group:
https://www.turn2us.org.uk/Benefit-guides/Universal-Credit/Additional-Elements-of-Universal-Credit#guide-content (see limited capability for work element - LCW and LCWRA).

She will, at some point, be reassessed with a new WCA assessment as a UC claimant, to check if she still is "not fit for work", and the additional amounts are still payable.

calcotti

happyandcontented wrote: »

Would that increase her benefit rates if awarded?

Yes if found to have Limited Capability for Work and Work Related Activity (equivalent to the ESA Support Group). Obviously she will have to attend an assessment in order for this to happen. If she gets LCWRA her UC payments will be higher than for ESA Support Group.

happyandcontented wrote: »

Are the descriptors the same as for ESA?

Yes

Alice_Holt

calcotti wrote: »

Obviously she will have to attend an assessment in order for this to happen. If she gets LCWRA her UC payments will be higher than for ESA Support Group

If the appeal was successful and it was decided her's was a "good" reason for not attending the ESA WCA
https://www.benefitsandwork.co.uk/forum/10-dla-esa-queries-results/97208-what-qualifies-as-a-valid-reason-not-to-attend

Then:
a) The DWP decision to stop her ESA because of non-attendance will be overturned;
b) Assuming she had been continuously in receipt of ESA (before April 2017) she would then be entitled to LCW or LCWRA from the date of her UC claim. She would not need a UC WCA for this to apply.

Obviously, this award could be changed when she has a UC WCA.

OP - this is why I think it would be in her interest to appeal. She should see if her local advice agency can help her.

calcotti

Alice_Holt wrote: »

If the appeal was successful and it was decided her's was a "good" reason for not attending the ESA WCA
https://www.benefitsandwork.co.uk/forum/10-dla-esa-queries-results/97208-what-qualifies-as-a-valid-reason-not-to-attend

Then:
a) The DWP decision to stop her ESA because of non-attendance will be overturned;
b) Assuming she had been continuously in receipt of ESA (before April 2017) she would then be entitled to LCW or LCWRA from the date of her UC claim. She would not need a UC WCA for this to apply.

Obviously, this award could be changed when she has a UC WCA.

OP - this is why I think it would be in her interest to appeal. She should see if her local advice agency can help her.

I think a lot of this is to do with timing. She has claimed UC and can request a WCA now for UC. Appealing the ESA will involve await for a tribunal. The UC WCA is likely to take place sooner than the tribunal. If the tribunal finds good reason the ESA can only be reinstated for a closed period up to the date of the UC claim. From the opening post I inferred that this period may be quite short, if this is so the financial gain may not be great so OP has to weigh up the size of the payment against any distress the appeal process will cause the friend.

The potential financial gain will be greater if establishing ESA entitlement gives rise, as you say, to additional elements in the UC award from the date of claim. We don’t yet know what ESA friend was getting prior to it being stopped.

happyandcontented

Thank you. I think from what the advisor said (and given that she has an Appointee and a 6 month fit note)that she must have been placed in the group on UC who are not expected to work. Her diagnosis on the fit note is Schizophrenia, High Blood Pressure and Asthma.

To get the higher rate does she need to request a WCA or will UC just send her for one?

Her last ESA payment was 19/06 and she will receive UC from 29/8. Her mother is covering her living expenses so getting the ESA is not vital.

I am leaning towards just trying to encourage her to get the best rate of UC available to her and not bother pushing her to appeal.

I don't know the detail of the ESA but it was around £220 per fortnight ( although I think she was repaying an OP at £11 per week from the entitlement) if that helps establish the type/form?

calcotti

happyandcontented wrote: »

Thank you. I think from what the advisor said (and given that she has an Appointee and a 6 month fit note)that she must have been placed in the group on UC who are not expected to work. Her diagnosis on the fit note is Schizophrenia, High Blood Pressure and Asthma.

To get the higher rate does she need to request a WCA or will UC just send her for one?

Her last ESA payment was 19/06 and she will receive UC from 29/8. Her mother is covering her living expenses so getting the ESA is not vital.

I am leaning towards just trying to encourage her to get the best rate of UC available to her and not bother pushing her to appeal.

I don't know the detail of the ESA but it was around £220 per fortnight ( although I think she was repaying an OP at £11 per week from the entitlement) if that helps establish the type/form?

If she has supplied Fit Notes she should be referred automatically. However there is no harm in asking specifically for a WCA because DWP do sometimes fail to start the process.

Not sure what ESA Group she was in from the figure you have quoted (it’s less than I would expect in the Support Group but it does depend on other income).

I take it the 29/8 is the UC payment date so the claim start date would be 22/7 (there is a 5 week delay). The gap in benefits is therefore about 5 weeks so she has missed out on about £600 of ESA. If she was in ESA Support Group she is also losing £336.20/month in the first 3 months of her UC claim. Total loss would then be about £1,600 which is a significant amount of money.

However none of this ‘lost’ income could be regained until after the tribunal hearing and tribunal waiting times in most parts of the country are many months (about 9 months where I am) so will make no immediate difference.

There is nothing to stop you lodging the appeal now. You don't need to provide much evidence at this point. You can assemble evidence and submit it with a statement during the waiting period. If you change your mind you can withdraw the appeal.

happyandcontented

calcotti wrote: »

If she has supplied Fit Notes she should be referred automatically. However there is no harm in asking specifically for a WCA because DWP do sometimes fail to start the process.

Not sure what ESA Group she was in from the figure you have quoted (it’s less than I would expect in the Support Group but it does depend on other income).

I take it the 29/8 is the UC payment date so the claim start date would be 22/7 (there is a 5 week delay). The gap in benefits is therefore about 5 weeks so she has missed out on about £600 of ESA. If she was in ESA Support Group she is also losing £336.20/month in the first 3 months of her UC claim. Total loss would then be about £1,600 which is a significant amount of money.

However none of this ‘lost’ income could be regained until after the tribunal hearing and tribunal waiting times in most parts of the country are many months (about 9 months where I am) so will make no immediate difference.

There is nothing to stop you lodging the appeal now. You don't need to provide much evidence at this point. You can assemble evidence and submit it with a statement during the waiting period. If you change your mind you can withdraw the appeal.

Thank you. Yes, those dates are correct.

According to her appointee that was her total benefit c £440 per month, paid fortnightly after the OP deduction. No other top-ups. From what you have said she probably wasn't in the support group but her appointee wasn't sure what that meant, as I say, she is 83!

A benefit of some kind or another has been in payment for many years, she had DLA at one point but lost that, so she is a legacy claimant.

calcotti

happyandcontented wrote: »

According to her appointee that was her total benefit c £440 per month, paid fortnightly after the OP deduction. No other top-ups. From what you have said she probably wasn't in the support group ...

She may be - it depends whether or not she has any other income as this would affect the amount of ESA. ESA Support Group, if no other income is £128.45 week so if paying £11/week would leave £117/week (£234/fortnight). The award letter will set out how the ESA entitlement is arrived at.

happyandcontented

Thank you, yes, I just phoned her and she rooted out the figures, you are correct. There is no other income.