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Thread: Best way to go about mandatory reconsideration regarding ESA SG to WRAG decision?

  1. #1
    New Member Rollcage's Avatar
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    Best way to go about mandatory reconsideration regarding ESA SG to WRAG decision?

    Hi,

    I've been on ESA for several years. During the past year, I was in the support group, having moved into it in December 2016. However, following my Work Capability Assessment in late November 2017, I was moved back into the WRAG. Among several other conditions, my OCD, memory problems and Raynaud's disease have hampered my ability to work. I explained all my problems in the WCA form as best as I could, taking almost 14 pages to describe how they affect my daily life. I didn't submit any medical evidence as at the time as I had nothing new (the form states that only evidence that a person already has should be submitted).
    On previous WCAs, I've been able to submit evidence to support my claim, but on this occasion, I had nothing. In hindsight, I suspect my lack of recent evidence has also contributed to the decision to move me into the WRAG.

    I received the letter informing of the decision to move me from the support group to the WRAG in late December and was asked to attend a work focused interview on the 29th. The letter stated that I could request a mandatory reconsideration. So I telephoned the DWP and requested all of the reports that were used to make the final decision. I asked about the mandatory reconsideration and was advised to look at the reports (once I had received it) to see where I failed, and then submit medical evidence and reasons showing why I think the decision is wrong.

    I was told that I'd have to make my mandatory reconsideration over the phone. I was also reassured several times that if the reconsideration fails, I wouldn't lose my benefits, ie I'd just continue to remain in the WRAG. I asked about the kind of medical evidence I'd need to submit and was a told that a doctor's letter would be helpful. I'm still waiting for the reports to be delivered.

    I recently went to my first work focused interview since I was moved to the WRAG, and the lady I saw was baffled as to why I had been asked to attend the interview. I explained that I was attempting a mandatory reconsideration and she gave me some information about organisations that may be able to help and sent me on my way.

    I don't claim any other benefits apart from ESA and council tax reduction. I live alone and have no other family or friends. As a result of this decision, I'm now £23 a week worse off, which only serves to make my life harder. I've never had to apply for a mandatory reconsideration and am unsure about the first step to take. My increasingly complex OCD rituals have prevented me from leaving the house often, which has meant that I've had very little contact with my GP (or anyone else) over the past year. So I just don't know what to say to them. I feel as if I am overwhelmed by what I need to do to attempt to resolve this. The OCD among other problems in my life has lead me to live a very isolated existence for the past few years so I have absolutely no one else to discuss all this with.

    So I was wondering if anyone could advise me on what I need to do first. I've tried to organise a plan of action, but I just don't know how to go about it - and if I'm doing things correctly.

    Thanks

  2. #2
    Senior Member nukecad's Avatar
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    You seem to be doing things right up to now, so that's good.

    While it can be difficult to cope with this process it is not unusual and is something lots of us have had to do.

    You are not going to like hearing this; but the Mandatory Reconsideration is probably just going to say what has already been said.

    So just go through that, don't get dispirited, and go to tribubal.

    The advice to contact organisations that can help is good.

    Any local welfare support sees this all the time and can help.
    Going to tribunal is a scary thought if you have never done it - but that is just because you don't know what it is all about.
    Once you have done it you realise that there was nothing to be worrried about.
    We see lots of people who say that they were scared but now wonder what all the fuss was about.

    And yes, in this situation you will still be paid ESA WRAG - What you are challenging is that it should be support group and so the extra money.

    PS. What it says on the form about not sending old stuff is just for their convinence, if it still applies and you have nothing newer then send it.
    Last edited by nukecad; 01-02-2018 at 07:58 PM.
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  3. #3
    New Member Rollcage's Avatar
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    Hello nukecad,

    Thank you for replying and the helpful suggestions. Today I received the reports that I requested from the DWP. I was only sent two reports (the HCP's report and the DWP Decision Maker's report). I briefly looked through the health care practitioner's report and noticed a lot of results from tests and questions that I didn't undergo were used to form the report.
    For example, in the report, it says that I was asked to spell "world" backwards, recall three things (I was asked to remember) - ie memory tests to test my short and long term memory, which - according to the report - I "passed".

    The report also states that I had various physical examinations, which I also "passed". The thing is, none of this happened; the assessement only lasted about 25 minutes, during which I was asked a series questions about how my health problems affect me, which medications I was on, and how I'd cope in particular situations. At no point was I physically examined by the (female) HCP or asked questions to test my memory recall ability.

    I was quite taken aback by what I read in the report today. That results from tests that did not occur were used to form the HCP report doesn't seem right; I just find it remarkable that such results can legally be used despite the tests not occuring. Is this something that happens often with ESA WCAs?

    Regarding the mandatory reconsideration, would you advise submitting my application over the phone (as the DWP suggested) or in writing? And if I have to do it in writing, is there a special form that I have to apply for?. Sorry for the questions; I'm just trying my best to do things correctly.

    Thanks
    Last edited by Rollcage; 01-03-2018 at 11:02 PM.

  4. #4
    Senior Member nukecad's Avatar
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    You can ask for MR by phone or in writing.

    In fact there is no requirement to formally ask for MR by name, if you phone to query your results they will often take that as a request for MR.

    If you do ask for it by phone and want to send something written then be sure to tell them that you will be sending written evidence, and to wait for that before reconsidering your case.
    Unfortunately even if you do this they will often just go ahead without waiting anyway.

    As I said above MR is regarded by most people as a flawed system that just 'rubber stamps' the original decision and delays/deters you going to tribunal.
    Only about 11% of decisions get changed at MR.
    But you have to do the MR before you can go to the independent tribunal.
    Currently about 68/70% of decisions that go to tribunal get changed in the claimants favour. (One reason why there is general suspicion about MRs being a useless delaying tactic).

    As for the report; it's not unusual to see that.
    Sometimes the physical (and mental) 'tests' are not announced as such but are just general observation, from the second you walk up the path to the second you leave.
    Sometime they will re-use someone elses typed up report - and forget to change things.
    We have had evidence of that reported on this forum, some pages of a report that had a different persons name and NI number on them and talked about conditions that the claimant did not have.

    Best advice is just to concentrate on the facts as they are.
    Don't rant that the assessor is a liar, but calmly point out where there are obvious errors.
    Remember that the tribunal is not about complaining, it's about the facts of your abilities.
    Again the independent tribunals are well used to seeing, and are not fooled by, misleading/inaccurate assessment reports. The tribunal works only with the facts.
    Last edited by nukecad; 01-03-2018 at 11:52 PM.
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  5. #5
    New Member Rollcage's Avatar
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    Thanks for the swift response, nukecad.

    Your point regarding a WCA results query being taken as an MR request reminded me that when I enquired about the MR, the lady on phone told me that the MR request would be noted on my file. I think I'll submit my MR over the phone because the deadline date is 13 January, and I won't have enough time to get the doctor's evidence and a strong letter explaining why I disagree typed up.

    I've obviously failed something - hence why I've been moved from the SG to the WRAG, so should I just be looking through the HCP report and identifying all the areas I disagree with, where I think I should have gained more points, and build my case/answers around those elements, or should I be looking at a different set of criteria?

    I've heard of the "support group descriptors". I'm unsure about what I should be focussing my attention on: arguing why I think I should be scoring more points or arguing why I think I meet the SG descriptors. It's all rather confusing: I'm just not sure which one ultimately determines whether you're in the WRAG or support group.

    I'll definitely be taking on board your suggestions about concentrating on the facts and not casting doubt on the assesor's credibility.
    Last edited by Rollcage; 01-04-2018 at 12:44 AM.

  6. #6
    Senior Member nukecad's Avatar
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    Firstly the points score only gets you into WRAG, as you have been given WRAG then you already have enough points (or qualify by special regulation 29).
    You need 15 points to be awarded WRAG, it should tell you on your decision letter if you scored more than 15 points. (or should mention special regulation 29).

    Arguing against your points score is not going to get you into Support Group.
    You need to concentrate on the Support Group descriptors.

    To get into Support Group you then have to satisfy just one of the extra descriptors that do not score points. (or satisfy special regulation 35).
    You can see what they are in Schedule 3 of the ESA legislation (starting on page 137 of this PDF).
    http://www.legislation.gov.uk/uksi/2..._310817_en.pdf

    Again you only have to satisfy just one of these to be awarded Support Group.

    SPECIAL REGULATIONS.
    I mention above special regulations 29 and 35.
    Both of these say that if you were made to work (WRAG, reg 29), or do work related activities (Support Group, reg 35), and this would pose a 'risk of harm' to yourself or others then you should be automatically awarded the respective group.

    If your decision letter, or the previous decision that awarded you SG, mentions either of these regulations then what you need to concentrate on is different.
    If they are mentioned, especially reg 35, then you need to concentrate on this 'risk of harm'.
    If that is the case then let us know and we can advise further.
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  7. #7
    New Member Rollcage's Avatar
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    Hello nukecad,

    Thanks, that makes things a little clearer. Today, I looked at the Decision Maker's report and I only scored a total of 6 points and had regulation 29 applied. I presume it is only because of regulation 29 that I made it into the WRAG as I scored well below the minimum 15 points required for the WRAG. The sole 6 points I scored were for "coping with change" under the Mental, cognitive, and intellectual activity section. I read through the HCP report properly, too and found it difficult to remain calm when I came across the tests (and results) that were not performed. Is it worth raising this made up information in my MR application? And should I rephrase it as an "error"? The fact that I only scored 6 points makes me feel as if I wasted my time writing 14 pages of information about how my conditions affect me. It's as if they just ignored all of it.

    Regarding the SG descriptors, should I just concentrate on satisfying one descriptor in particular, or should I mention why I think I may satisfy more than one? And by "satisfying" a descriptor does that simply mean explain why I think I my conditions put me in that descriptor and back it up with evidence?

    I'm still unclear what regulation 29 is. The DM report says "I can be treated as having limited capability for work but not treated as having limited capability for work related activity". I have no idea how to interpret that. What difference is there between work and work related activity? Would I have to refer to regulation 29 in my MR application?

    I contacted the number for the local welfare support service that was given to me by my work coach during my first WFI since being moved, and the earliest appointment they can book for me is 25 January 2018. I accepted it and explained that the deadline date for the original ESA decision letter was 13 January (the letter was dated 13 December 2017) and that I phoned up the DWP to request the MR on 27 December (I think). The lady from the welfare support organisation told me to explain to the DWP that I am only able to get help with my MR request on the 25th at the earliest and they should be ok with it. I'm not sure whether they will accept that I am only able to get help with the MR on the 25th, and I'm now rather worried about calling them tomorrow.

    Thank you for all the advice so far. I really appreciate it.
    Last edited by Rollcage; 01-04-2018 at 07:05 PM.

  8. #8
    Senior Member nukecad's Avatar
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    Cheers for that.

    I'm on my phone at the moment so can't access things fully.

    It looks like special regs do apply so arguing points or descriptors is not going to be what you need.

    I'll be back when I get home with more info and advice.
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  9. #9
    New Member Rollcage's Avatar
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    Quote Originally Posted by nukecad View Post
    Cheers for that.

    I'm on my phone at the moment so can't access things fully.

    It looks like special regs do apply so arguing points or descriptors is not going to be what you need.

    I'll be back when I get home with more info and advice.
    Thanks, much appreciated.

  10. #10
    Senior Member nukecad's Avatar
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    Sorry for the delay, (my own health problem kicked in).

    As you only scored 6 points then, yes, they have applied regulation 29 to award you WRAG.

    Regulation 29 basically says that there would be a 'Risk of Harm' to yourself or others if you were made to do any work.

    This being the case then I would say that concentrating on the discriptors is the wrong approach, and would probably be a waste of your efforts.

    What you need to concentrate on arguing now is that the same 'risk of harm' would apply if you were made to do any Work Related Activities.
    This is regulation 35, which basicly says the same as regulation 29, but is worded slightly differently.
    Regulation 35 says that there would be a 'Risk of Harm' to yourself or others if you were made to do any Work Related Activities.

    You would think that if regulation 29 applied then then regulation 35 should also, but the slight difference in wording makes it not that simple.

    The DWP argues that a Work Related Activities environment is somehow safer than an actual work environment.
    (And the problem is that it could be depending on the actual WRAs).
    Previous tribunal/court cases have ruled that they must now show this in each individual case, including saying what any Work Related Activities are likely to be for each claimant who challenges this, and why they would be safer in each case.
    But of course you have to get to the tribunal for them to ask this, which means doing MR first.

    It is good to see that you have sought advice, the welfare advisor should be familiar with these regulations and should know what is needed to challenge your WRAG award to get it back to Support Group.

    From what you have said then I am assuming that you were previously in the Support Group by means of regulation 35, and if your conditions/abilities have not improved then I would be challenging how they could justify finding differently this time than they did last time.

    I still think that you will probably need to go to the appeal tribunal, hopefully I'll be wrong and they will see sense at MR.
    If you do go to tribunal then with the help of the welfare people I believe you should have no problem getting your SG back.
    The DWP would have a hard time convincing the tribunal that things have changed.

    It's a bit of a pain in the neck to go through this, but it's not that unusual these days, keep with it and you should win.
    Last edited by nukecad; 01-05-2018 at 06:28 PM.
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