Page 1 of 2 12 LastLast
Results 1 to 10 of 15

Thread: Failed ESA assessment....what next?

  1. #1

    Failed ESA assessment....what next?

    My hubby has just found out that he has failed his work capability assessment and that his ESA claim has been stopped.
    I am a joint claimant with him so it means our total income is stopped, along with housing benefit and council tax benefit.
    We are now really confused about what to do next.

    We have received the medical report today and it shows that my husband was awarded 6 points in total. We are going to ask for an MR (mandatory reconsideration) but are really unsure what to do in the meantime.
    He has been advised to put in a claim for JSA or a new claim for ESA if his condition has worsened or he has a new condition. Is this the only way to make sure we have some income whilst the whole MR and appeal process is going through?

    The fact that he is unable to work (plus the fact that he at least got 6 points on his medical means that he has been confirmed to be not 100% fit for work) makes applying for JSA seem unsuitable because he won't be capable of going for interviews, applying for jobs and getting a job, let alone holding a job down.

    He could claim ESA for a worsening condition but will he need to get a new fit note from the GP (and myself also since I will need to be a joint claimant)? Also, if he puts in a new claim, what happens if his appeal is successful? Will his old claim be reinstated and the new claim cancelled?

    Can me and my hubby make separate claims (him for JSA and me for ESA)?

    Sorry for so many questions. I have lots more yet but I am just going to deal with them gradually.

  2. #2
    Senior Member nukecad's Avatar
    Join Date
    Jun 2014
    Location
    West Cumbria (Lake District)
    Posts
    7,814
    When you say you have a joint claim do you mean that it was a couples claim?
    Or do you mean that you also qualify for ESA in your own right?
    That is - Have you had your own WCA and been found to have Limited Capability for work?
    It could make a difference to the answer as to what you should do next.

    For now here is my standard advice on what to do about the MR and having to claim JSA if you need to.

    How Mandatory Reconsideration and Having to claim Jobseekers Allowance (JSA) works.

    Mandatory Reconsideration-

    Your first step is to start by following the instructions in the rejection letter you've received to request a Mandatory Reconsideration.
    You only have a month from the date on the letter to do this so don't hang about.
    (From now on keep notes of all phone calls and copies of all letters sent, get at least proof of posting for all letters).

    You should do this by first phoning them, saying that you want a MR and that you will be making a written submission.
    While on the phone request from them your Assessment Report (ESA85) and the Decision Makers report (LT54), these will help you to see why you were refused and what to concentrate on to try and get your points score increased.

    Use this information to write a letter explaining why you think the original decision was wrong.
    Just explain why you think you qualify for the points on the relevant descriptors.

    Don't go into things like "what the assessor wrote was I lie, I never said that". That is for a complaint not a MR.
    You are having another chance here to influence a Decision Maker with the facts, arguing with what the assessor wrote will not help.

    (Expect this MR to fail, not all do but most do, think of it as a practice for your appeal - most of which win).

    Claiming JSA whilst awaiting MR-

    Whilst you are waiting for the MR you will have to claim Jobseekers Allowance if you want to keep receiving benefit.
    If it then goes to appeal after MR you can go back onto assessment rate ESA until the tribunal decision. (Provided you were on ESA, assessment or full rate before the fit-for-work decision).

    If you have been claiming JSA during MR then you have to ask to be put back onto assessment rate. The advisors are told not to ask you.
    Or you can stay on JSA, the jobcentres prefer you to stay on JSA but it's up to you.

    The Jobcentres are aware of this strange situation, when you sign onto JSA you tell them you are doing so because of an ESA MR and they don't give you the same claimant commitments as a regular jobseeker.
    (Be careful what you say though, if you refuse to do any jobseekers comitments at all they can refuse your JSA claim; they shouldn't but some bad advisors do).

    The fact that you are having to claim JSA in this situation has no bearing whatsoever on your MR (or your tribunal appeal if needed).
    The MR (and tribunal) can only consider the circumstances at the date of your original claim, not what has happened since then.

    If they try to give you commitments that are too difficult for you all you can do is remind them that you are awaiting a ESA reconsideration because you have ill health.
    Try to point out how you condition affects your ability to do the commitments they ask for.
    For example, they may ask you to do so many hours searching for jobs. As most of this is done on a computer these days say that you can do this at home but cannot manage to go to the Jobcentre multiple times a week.

    Unfortunately the current government stance is that you have been found fit-for-work at a WCA and so have to claim JSA until found not-capable-of-work at MR (or until you appeal to tribunal).

    Changes to the rules last year mean that those claiming Jobseekers Alowance can have a period of 'Extended Sickness' for up to 13 weeks.
    So if you sign on to JSA during your Mandatory reconsideration, you should be able to supply 'sicknotes' and you can go immediately into this 13 week sickness period.
    Others who have done this advise that it is best to sign on for JSA first telling them you are doing an ESA MR; and then go sick a few days later. (They say doing it this way saves problems at the initial JSA interview).
    Hopefully the MR will have been completed before these 13 weeks are up and you will have been awarded ESA or can go back onto assessment rate during appeal.

    Universal Credit Areas
    • Although new claims for Income Related JSA (and IR ESA) have been replaced by Universal Credit in some areas this is only for new claims that fit the 'Gateway Conditions'.
    • Claims for IR JSA (and IR ESA) are still valid if you do not satisfy the UC Gateway Conditions.
    • Currently Because your existing ESA claim has gone to Mandatory Reconsideration you do not fit the Gateway Conditions and so are still able to claim Income Related JSA during your MR.
    • If they try to make you claim UC instead of JSA, politely point out that you do not fit the Gateway Conditions.

    Contribution Based ESA or JSA is not affected by UC and you should be able to claim CB JSA during an ESA MR.
    (Although there is a six month limit for CB JSA, which in this case includes the time spent on CB ESA asessment rate).

    Housing Benefit and Council Tax-

    You should let your Council know what is happening, for Housing Benefit and Council Tax Relief reasons.
    They have probably already been informed by the DWP that your ESA has stopped.

    Again they are used to this situation with MRs now and as long as they know you should have no problems; or at least less problems than if you don't tell them.
    I don't know everything. - But I'm good at searching for, and finding, stuff.

    Migration from ESA to Universal Credit- Click here for information.

  3. #3
    It was a couple's claim for ESA. I have never had a WCA. In this case, would I still follow the advice you have kindly given me?

  4. #4
    Senior Member nukecad's Avatar
    Join Date
    Jun 2014
    Location
    West Cumbria (Lake District)
    Posts
    7,814
    Yes, that means that it is just his ESA claim and so the best way to go now is MR and then appeal as stated above.

    And if you want to keep receiving some benefit during the MR then he will have to claim JSA and maybe go on the 13 week sickness.

    Just for info, was this a new claim that has been knocked back, or was it a reassessment?
    I don't know everything. - But I'm good at searching for, and finding, stuff.

    Migration from ESA to Universal Credit- Click here for information.

  5. #5
    Quote Originally Posted by nukecad View Post
    Yes, that means that it is just his ESA claim and so the best way to go now is MR and then appeal as stated above.

    And if you want to keep receiving some benefit during the MR then he will have to claim JSA and maybe go on the 13 week sickness.

    Just for info, was this a new claim that has been knocked back, or was it a reassessment?
    Thanks. So what happens to my part of the claim?
    This was a reassessment.

  6. #6
    Senior Member nukecad's Avatar
    Join Date
    Jun 2014
    Location
    West Cumbria (Lake District)
    Posts
    7,814
    Well, your 'part' of the claim was just that as a couple you got more money than a single person claim.

    It's not that important at this stage but may be later - was he in Support Group or WRAG?

    Just going back to your first post;
    You need to contact your council about your HB and CTR.
    The DWP will have already informed them that ESA has been stopped.
    Just tell them what has happened and that you want to keep claiming HB and CTR on low income grounds.
    They will send you a form to fill in to keep these being paid.
    I don't know everything. - But I'm good at searching for, and finding, stuff.

    Migration from ESA to Universal Credit- Click here for information.

  7. #7
    The initial claim was done for just my husband and then when I became ill I was given a choice of doing my own claim or being added to my husbands. I took the latter option because it was less messing about although they told us at the time that we would get LESS money than as 2 single claims.

    He was in the Support Group.

    I will contact the council, thanks for that advice.

    Should we apply for a joint JSA claim? If my hubby goes off sick a few days into it will I also need to supply a fit note if we are on a joint JSA claim?

  8. #8
    All good advice above. The MR wasn't successful on either of the two occasions we requested one, but we did win the appeal last time. It isn't a wasted exercise however, it's useful to request the documentation and find out what assumptions they may have made or if important evidence was overlooked in their decision.

    An appeal cannot be raised without first requesting a MR so use this time as an opportunity to gather as much evidence from medical professionals as you can. Don't ever assume that the DWP will take any previously successful application into account. In the meantime, it may be worth making a stand-alone application for yourself.

  9. #9
    Senior Member nukecad's Avatar
    Join Date
    Jun 2014
    Location
    West Cumbria (Lake District)
    Posts
    7,814
    Quote Originally Posted by zebedee View Post
    The initial claim was done for just my husband and then when I became ill I was given a choice of doing my own claim or being added to my husbands. I took the latter option because it was less messing about although they told us at the time that we would get LESS money than as 2 single claims.
    I see.

    Whether you could both have seperate ESA claims depends on whether the claims were Contribution Based or Income Related.

    If you were both entitled to CB ESA then you could each have, and get paid for, your own claim.

    If one or both entitlements was IR then you could only have one claim as a couple.
    It then becomes a decision on which one of you should claim for the better outcome, which will depend if either or both also get DLA/PIP.
    As usual it all gets complicated and you should sit down with a benefits advisor to discuss it.
    http://www.entitledto.co.uk/help/mea...r-Off-Claiming

    From what you have said I would assume that you have not worked for some time so would now be unlikely to have your own entitlement to CB ESA and would have to claim IR instead.

    I would say at the moment that you should stick with appealing against your husbands decision.

    If he claims JSA whilst on the Reconsideration then it will be paid at the rate for a couple.
    If/when he subsequently goes to appeal then you can ask to go back onto ESA whilst waiting for the appeal to be heard.

    I believe that the JSA would have to be a 'Joint Claim' so that normally, unless you are responsible for a child, you would also be expected to have your own Job Seekers Agreement and be Actively Seeking Employment.
    However, if you have Limited Capability for Work in your own right then you can apply for an exemption to this when you claim JSA.
    https://www.whatdotheyknow.com/reque...20Guidance.pdf
    Or as you say I suppose you could also 'go sick', I'm not sure just how that would work.

    You do seem to have an interesting option in that if for any reason his appeal is unsucessful, it looks like you may be able to put in an ESA claim in your own right which of course would be paid at the couples rate.
    Last edited by nukecad; 10-20-2016 at 07:26 AM.
    I don't know everything. - But I'm good at searching for, and finding, stuff.

    Migration from ESA to Universal Credit- Click here for information.

  10. #10
    Quote Originally Posted by MrsB View Post
    All good advice above. The MR wasn't successful on either of the two occasions we requested one, but we did win the appeal last time. It isn't a wasted exercise however, it's useful to request the documentation and find out what assumptions they may have made or if important evidence was overlooked in their decision.

    An appeal cannot be raised without first requesting a MR so use this time as an opportunity to gather as much evidence from medical professionals as you can. Don't ever assume that the DWP will take any previously successful application into account. In the meantime, it may be worth making a stand-alone application for yourself.
    Thanks for your input MrsB. I wouldn't expect hubby would win the MR so we are all prepared for tribunal however at the moment our main concern is our income or lack of. If I did my own esa claim and hubby does jsa, when he goes back to esa assessment rate whilst awaiting tribunal, will my own esa claim then be cancelled and put back to the joint couples claim on assessment rate?
    I really want to avoid an individual claim for myself because that's just more stress with assessments for me too.

    Just wondering how others would deal with this situation.

Similar Threads

  1. ESA failed assessment
    By taboo65 in forum Benefits - help & advice on disability benefits, incapacity benefits, ESA and DLA
    Replies: 10
    Last Post: 06-16-2016, 10:21 PM
  2. Failed PIP assessment for Hypermobility
    By scarletspy in forum Benefits - help & advice on disability benefits, incapacity benefits, ESA and DLA
    Replies: 6
    Last Post: 05-28-2016, 03:25 PM
  3. Think I failed my assessment
    By Raiiboii in forum Benefits - help & advice on disability benefits, incapacity benefits, ESA and DLA
    Replies: 2
    Last Post: 09-01-2015, 08:07 PM
  4. Esa stopped as failed medical assessment.
    By bub1 in forum Benefits - help & advice on disability benefits, incapacity benefits, ESA and DLA
    Replies: 20
    Last Post: 04-27-2015, 12:30 AM
  5. Failed F2F Assessment
    By JPR in forum Benefits - help & advice on disability benefits, incapacity benefits, ESA and DLA
    Replies: 4
    Last Post: 12-13-2012, 11:37 AM

Tags for this Thread

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •