Need help on UC/ESA/PIP

audioblackout

Hi everyone.

I'm posting this for a friend who suffers badly from anxiety and depression and is so confused that I need to post this for her. Hopefully some good samaritan can offer some sound advice for her? Anyway this is what she sent me.
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Hi there. Just looking for a bit of advice.

I was self employed in Leeds and basically started claming JSA after having to move out of my home. Then I had to have a knee operation which left me out of action. So I started claiming ESA for which they denied me after the assessment from which the assessor seemed to completely discount my situation and how I was.

I went to appeal and had that turned down aswell. Not sure whether they considered my evidence. I know that some of it wasn’t allowed (they didn’t take into consideration my present condition which is a state of anxiety and depression for which I’m on anxiety meds - i’ve refused anti depressents.). I was already slightly this way before my knee op due to a series of personal events but never spoke about it so it's not documented for the period the ESA hearing was for. So I think that new evidence wasn’t considered in this hearing - just my knee issue, which is why I lost.

Anyway, since the appeal I’m just a bit lost as to what to do.

Should I try to appeal at the upper tribunal or would this be a waste of time? I don’t have a lot of funds left as I’m not really fit for work atm, only managing a couple hours a week. I've reinstated my housing benefit but now obviously need support from other benefits.

What ESA is still available to me as I’m really confused about it all and all I hear and get told is UC is the only way forward?

Is contributions based still available or does it have to be new style esa?

How long will it take and will my housing benefit be stopped while i’m making a claim or after ive been awarded?

I know I cant go back to legacy benefits once I start this process and citizens advice have said it may be worth pursuing the upper tribunal. I have also been told I should apply for PIP but what are the chances of that if they wont allow me esa? (although my circumstances have changed since my knee op). I know I need it and I know in my head I’m eligible but I know that doesn’t mean they’ll award it.

Any help would be greatly appreciated..

Spoonie_Turtle

PIP has different criteria and descriptors from ESA, so it's definitely worth checking it out. Even the standard rate of just one component would be very helpful financially.

New-style ESA *is* contributions-based; anything income-based now comes under UC for the purposes of new applications.

New conditions that have developed or worsened since the initial ESA claim won't be counted in this application. An appeal to the Upper Tribunal is only allowed if the first-tier tribunal made a demonstrable error in law (failed to find sufficient facts, or made an incorrect decision based on the facts / misapplied the law to those facts) and if the error would affect any entitlement. E.g. if you argue one descriptor scoring 6 points but if awarded it would have taken to only 12 points, it makes no difference. Only if it would take you over the threshold for being eligible does it count. There is also the possibility of exploring the regulation that to be found for for work / -related activity would pose a 'substantial risk' to your physical and/or mental health, but as far as I understand that needed to be put forward for consideration at the time, otherwise there was no error in law because it was not an issue up for consideration. << I could be wrong about that last part, but that's my understanding from the load of case law I've been reading over the past few months.
New evidence HAS to relate to the condition(s) as it was at the time of the original decision. Any deterioration is not taken into account unless it is as a direct result of the decision to find you fit for work, demonstrating that the original decision was incorrect.

It may be quicker just to claim UC, with a fit note from the GP to certify being not fit for work, then referred for a Work Capability Assessment from the 29th day of long-term illness. It's the same process as ESA, the same descriptors, but the whole of the current health situation can be considered to start with, not just the knee issue.

Btw it really would be simpler for your friend to post on here herself so all questions about her current situation and answers would be direct, even if you helped her out with it. Benefits terminology and specifics can be confusing and wires can get crossed if words are accidentally changed in the process of you relaying info to and from her.

I don't know anything about Housing Benefit but many others on here more experienced and knowledgable will be able to help.

calcotti

You can only appeal to the upper tribunal if there is an error in law - you cannot appeal just because you disagree. The tribunal are correct not to consider changes to you4 health that took place after the decision being appealed.

A new claim for ESA would have to e new style ESA which is equivalent to contribution based ESA. However you would have to satisfy the NI contribution requirements.

PIP and ESA are assessed differently and in any case you have said that your health is worse now than when assessed for ESA. You need to familiarise yourself with the PIP descriptors and decide whether or not you think you can score enough points to qualify for an award. https://www.citizensadvice.org.uk/benefits/sick-or-disabled-people-and-carers/pip/

Your Housing Benefit can continue (unless you claim UC - see below) but will need to be reassessed based on your finances because you no longer automatically qualify as a result of receiving income based ESA. You therefore need to update your local authority about your situation.

However one of this gives you money to live off now. You should also look at Universal Credit which is means tested and replaces JSA, ESA, Housing Benefit and Tax Credits. If you obtain a Fit Note and tell DWP you have health issues which are worse than when you were last assessed under ESA you can have a Work Capability Assessment under UC. A UC claim will end your Housing Benefit after 2 weeks but UC will include help with rent. https://www.citizensadvice.org.uk/benefits/universal-credit/

Alice_Holt

I would second Spoonie Turtles suggestion "it really would be simpler for your friend to post on here herself so all questions about her current situation and answers would be direct,".

Did she mention her depression and anxiety on her ESA50 form? Did the tribunal panel award her any points? Could she have used a manual wheelchair to overcome the knee problem to mobilise?
Why does she feel "I know in my head I’m eligible" [for ESA] and which points applied at the time of the application / what points apply now?:
https://www.benefitsandwork.co.uk/employment-and-support-allowance/start-the-esa-test

Has she looked at the PIP descriptors?
https://www.benefitsandwork.co.uk/personal-independence-payment-pip/pip-points-system
Does she think she would get the necessary 8 points?
Who has suggested she claim PIP? Why hasn't she decided to apply?
If she is being helped by her local Citizens Advice, has she asked them for help to complete the PIP form?
https://www.citizensadvice.org.uk/benefits/sick-or-disabled-people-and-carers/pip/help-with-your-claim/fill-in-form/
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/831253/PIP-assessment-guide-part-2-the_assessment-criteria.pdf
https://www.rethink.org/advice-and-information/rights-restrictions/money-benefits-and-employment/personal-independence-payment-pip/?gclid=Cj0KCQiAtrnuBRDXARIsABiN-7AM7JsBIYcs7UW4hfTNdRh7RRw2gPm1481LH1Esz-8IrfLefTZ3_6caAkxGEALw_wcB

Would her NI contributions enable her to apply for New Style ESA on the basis of a new condition?
https://www.gov.uk/guidance/new-style-employment-and-support-allowance
https://www.turn2us.org.uk/Benefit-guides/Employment-and-Support-Allowance/Who-can-get-Employment-and-Support-Allowance

If she claims UC, does she have savings to cover the 3 weeks gap in housing costs before the first UC payment.



Based on your post, I would suggest your friend:
a) applies for PIP with the help of a local advice agency. As she appears possibly not to have listed all her difficulties on her ESA50 form (so consequently was not successful at appeal) - it is very important that she is entirely open with her PIP application and seeks help to make it as strong as possible;
b) she might as well try an UT appeal, but unless depression and anxiety were on the form I wouldn't anticipate the FTT decision being set aside. As calcotti states a tribunal can only consider her stated conditions at the date of the disputed DWP decision;
c) if depression and anxiety where not on the ESA form and she has sufficient NI contributions then make a new claim for New Style ESA on the basis of a new condition (see f);
d) if she doesn't have sufficient NI contributions to claim New Style ESA (or if her mental health was indeed on the form), then consider a UC claim whilst she still has savings to pay 3 weeks rent;
e) If not already doing so - claim CTr from her council.
f) go to her GP fully disclose her depression and anxiety - take any recommended medicines, ask for a counselling referral, ask if they would support her PIP / ESA / UC WCA application / appeal. If reapplying for ESA get the GP to confirm her new health condition.

Please get back to us with the answers to these questions, so we can better tailor our suggestions for your friend,

audioblackout

I am so very grateful for everyone's help so far. I'll send her this link tomorrow and I'll advise her also to sign up for an account and reply. Thank you so much. I'm sure this will really help make her more focused on what she needs to do. Thank you so much everyone.