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Thread: ESA Medical, Advice needed where I stand legally

  1. #1

    ESA Medical, Advice needed where I stand legally

    Hi there, I will try and keep this as short as possible.

    I started on benefits for the first time in January 2017 due to suffering with severe anxiety and depression.
    I was put on contribution based ESA from January 2017 until January 2018, In November 2017 I received a letter telling me my benefits would be stopping in January 2018 unless I was placed in something called "The support group"

    As this is the first time I had ever been on benefits and it had never been explained to me what the support group was or how I should apply to be in it I called the DWP and asked them.
    It was then that the DWP realised it had made a error in the dealing of my case and hadn't actually sent me for a medical examination or sent me a medical questionnaire.
    It also came to light that the Medical services team had absolutely no record of me on their system.

    My benefits were stopped on January 3rd 2018 as I had been on contribution based ESA for 1 year and due to the failings by the DWP in not sending me for a medical examination I lost all access to my benefit.

    I eventually received the ESA50 form which I completed and took into my local jobcentre to be scanned and sent off as advised by the DWP on January 10th 2018

    I raised a complaint with the DWP regarding the severe maladministration in the handling of my case on January 10th 2018. I have also included in my complaint that I had been underpaid on my ESA as I should at the very least have been receiving the work related activity enhanced rate or the support group rate for the duration of my claim. In my complaint I have also listed multiple failures in the handling of my complaint, including the special payment scheme which go against dwp and government guidelines.

    The DWP are NOW requesting that I attend a medical examination on March 12th despite the fact I am no longer receiving my benefit and have been receiving treatment from a Psychologist for my mental health issues for quite sometime since my benefit stopped.

    I am extremely concerned that a medical at this stage is not fit for purpose and should not be used to form an opinion of my mental health over the past 15 months. It concerns me that should this medical assessment be used against me it will damage my chances of receiving what I am actually owed and entitled too.

    The DWP are refusing to backdate my ESA payments at the enhanced rate until a medical assessment has been performed, so I really do not know what to do for the best.

    Just to outline how my official complaint has been dealt with thus far.

    January 10th Original complaint handed in to my local job centre by myself. DWP guidelines state the complaint will be dealt with within 14 working days

    February 1st DWP admit losing my complaint, details of the complaint given again and a 2 week time period promised to resolve complaint as they will move my complaint near the top due to their error

    February 13th My local MP sends my complaint to the Minister for work and pensions asking for a response

    February 15th I eventually get in touch with the complaints department and they have my complaint but due to a back log and the fact they are dealing with complaints as they are dated, they cannot move my complaint any quicker and I need to wait another 3 weeks which will be March 9th.


    I am mainly concerned on whether or not I should attend the medical in the fear it may do my case more harm than good considering I have received treatment for my mental health issues.

    My MP has asked the DWP to clarify what impact the delay in the medical examination will have on the result taking into account my treatment but they have not responded to this question as of today.

    I would like some guidance on how best to proceed if possible?

    Many thanks

  2. #2
    Senior Member nukecad's Avatar
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    Yes the DWP have cocked up, not for the first time, it won't be the last.

    Firstly-
    You must go for the Assessment. (PS. It's not a medical - It's an assessment of your ability to work, not of any medical condition).
    Failure to attend will mean the end of your claim altogether with nothing more payable.

    If after the assessment you are awarded a group component then it will be backpaid to the start of the 14th week of your claim.
    (All ESA claims have this 13 week 'waiting period').
    If you are awarded Support Group you will also be backpaid any monies owing since payments stopped.
    See below for a fuller explanation.

    To explain why you ESA has stopped being paid.

    Contribution Based ESA is only payable for the first 52 weeks of an ESA claim unless you are awarded Support Group.

    If you have not been awarded Support Group then after the 52 weeks then you can still be paid Income Related ESA, unless you have savings/capital of over £16,000, some other income, or have a partner who works more than 24 hours a week.
    In that case you can have what is known as a 'credits only' ESA award, which pays NI credits towards your state pension but no money.
    (At the moment this is what you seem to have - a 'credits only' ESA claim).

    So I assume that in your case you have some savings/capital or income that is preventing ESA IR being paid? Or you have a partner working more than 24 hours?
    The following is based on that.

    We have seen this cock-up before with assessments not being carried out for over 12 months.
    What happens is just what is happening with yourself, by law an assessment must be done and so one is scheduled as quickly as possible.
    It's unfortunate it wasn't carried out earlier, but doing one quickly now is the best that can be reasonably done (without a time machine).

    There are 3 possible outcomes from a Work Capability Assessment:
    1. If you are awarded Support Group (SG) then your Contribution Based ESA will be reinstated, you will be backpaid the personal component to when payments stopped, and further backpaid the SG component from week 14 of your claim.
      Payments of ESA Support Group would then continue fortnightly.
    2. If you are awarded Work Related Activities Group (WRAG) then you will be backpaid that component from week 14 to week 52 when your entitlement to CB ESA ended.
      Your claim can still be active as an Income Related claim and you will get NI credits toward your pension, but no money will be paid if you (your partner) have savings over £16K or income from working.
    3. If you are found not to qualify for ESA (fit for work) then no further payments or backpayments will be due.


    If you don't agree with the decision then you have the right to ask for a Mandatory Reconsideration to look at it again.
    If you still don't agree after MR then you can appeal to the independant tribunal.

    I hope that clears a few things up, please come back with any more questions you may have.
    Last edited by nukecad; 03-06-2018 at 07:08 PM.
    I don't know everything. - But I'm good at searching for, and finding, stuff.

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  3. #3
    Hi Nukecad, Thank you so much for taking the time to explain it all, I massively appreciate it.

    I guess I am just concerned because ultimately the DWP can assess my ability for work now but I do not see how they can use this medical assessment to judge the past 14 months.
    Thankfully I am working towards feeling better now that I am receiving treatment but surely if I were to fail this medical and be deemed "Fit for work" I could challenge the decision based on the fact I do not believe a medical assessment "Now" gives a good indication of my ability to work for the 14 months prior?

    Just to clarify, I was signed off by multiple doctors over the course of last year and deemed too unwell to work and also yes my partner works fulltime hence the contribution based ESA situation.

    Just finally, Is there anything else I can do regarding my complaint? I know I can approach the I.C.E if I believe I have given the DWP sufficient time to respond with a final response. Ultimately I wont be letting this complaint go and will be taking it to the highest possible authority in order to have this resolved to my satisfaction. I seriously worry about people who are not as able as me and how they may cope or not cope in my situation. The DWP needs to be held accountable

  4. #4
    Senior Member nukecad's Avatar
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    I do not see how they can use this medical assessment to judge the past 14 months.
    Again, I can't emphasise enough - It is not a medical assessment, it is an assessment of your ability to do any work. (A WORK CAPABILITY Assessment).

    It's a bugger, but like I said without a time machine then it's hard to assess how you were 14 months ago.

    The law says that you must be assessed, either on paperwork or face to face, to be put into an ESA group. (Unless you have a terminal illness).
    So the DWP are doing what they need to comply with the law.

    In cases like yours then it would be best all round if they could go off the paperwork you supplied at the time, but sometimes that will not be enough.
    Especially if you thought it was a medical assessment and so only supplied evidence of your medical condition, and not of how it affects/affected your ability to work.

    It was a similar situation a few years back, even without any cockups some people were waiting months for their initial assessments, by which time they could have improved or got worse.

    As I said above you are not the first to have been 'forgotten' like this, I'll have a look to see if I can find anything about one of those cases that might help.
    (I'm sure that there must be some that challenged the decision when it was made late like this, it's just a question of finding the case and what happened).

    As for the ICE I'm not sure if you would be best waiting for the DWP to respond, I would need to check on the 'non-response' time they are allowed.
    I may find somthing about that too when I look for the other stuff.

    Hopefully all will go as you want with the assessment/decision. (Always seems odd to wish someone limited capability).

    And do keep on with the complaint, the more complaints made, and upheld, the more chance there is of something changing.

    Just don't let the complaint cloud what you need to show at the assessment, they are 2 seperate processes.

    PS. Are you aware of the Works & Pensions Select Committee inquiry into ESA and PIP assessments?
    We have had a thread following it from the start:
    http://www.youreable.com/forums/show...mittee-inquiry!
    There has been an interim report published up to now, and more to come.
    (And the DWP have been caught out lying to them which has not gone down well).

    Don't let all the horror stories put you off, most people don't have problems so you don't hear about them so much, but there are still too many problems as you have found yourself.
    I'm sure your MP is already aware of the inquiry, but it may be worth pointing it out to him.
    Last edited by nukecad; 03-06-2018 at 09:59 PM.
    I don't know everything. - But I'm good at searching for, and finding, stuff.

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  5. #5
    Senior Member nukecad's Avatar
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    Well I've had a bit of a trawl about and not found much definitive that is up to date.

    However this is an interesting one from August 2017,
    A client who was on assessment rate for 5 years without a WCA, then was found fit for work when he finally had one.

    They were not going to backpay any component until the advisor mentioned Article 6 of the Human Rights Act (Right to a fair trial/hearing), a bit of an off the wall argument but it seems it worked and he did get backpaid for WRAG.
    https://www.rightsnet.org.uk/forums/viewthread/11663/

    Article 6 HRA

    I don't suppose your are anywhere near Wigan and can get that particular advisor to help you?

    Other than that the general consensus seems to be that the system is wrong, (not surprising, everyone knows the WCA system is wrong).
    In this case the problem is that such long delays were never envisioned when the law was drafted, and so are not provided for.

    But no one seems to have any sure fire advice about what to do if you find yourself in this situation.

    The general advice seems to be that once you have (finaly) had the WCA decision then if you don't like the decision you can appeal and ask the court to consider the fact that your GP has been providing sicknotes all along as evidence of your previous limited capability, and the DWP have been accepting the sicknotes as proof.
    OR
    You could apply for 'Financial Redress for Maladministration'.
    Here's a link to the staff guide about that: https://www.gov.uk/government/public...-for-dwp-staff

    In either of those courses you are going to need good support, preferably from someone who knows benefit law well.

    If I find anything else that could help I'll be sure to post it.
    Last edited by nukecad; 03-07-2018 at 01:19 PM.
    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.

  6. #6
    Excellent! Thanks Nukecad

    I have had a law clinic take a look at my case which are local and part of my local University and also free of charge. They took a look at my case and would like to take it on which I guess is positive news.

    I have already addressed the financial redress for maladministration and that forms the second part of my complaint.

  7. #7
    Senior Member nukecad's Avatar
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    Quote Originally Posted by J1985 View Post
    I have had a law clinic take a look at my case which are local and part of my local University and also free of charge. They took a look at my case and would like to take it on which I guess is positive news.
    That's probably the best news you could get, other than the DWP rolling over and giving you SG from the start of your claim .

    There are quite a few of these free University law clinics about the country.
    They will be trainee lawyers/solicitors, usually close to graduating and very keen to make a mark, plus they will have the support of their experienced tutors/mentors.

    (You might want to point them to that rightsnet thread and the use of Article 6, like I say it seemed a bit off the wall to me but it may give them some different ideas to consider).
    Last edited by nukecad; 03-07-2018 at 01:28 PM.
    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.

  8. #8
    I will certainly do that

    Thanks again Nukecad, you have been great !

  9. #9
    Just to note I have requested my assessment be recorded and my partner called them a few days back to make sure they are still aware of my request and apparently it is all in place.

    So I am having my assessment recorded and also taking along my partner...I am also hoping to get a brief letter from my psychologist explaining what he is treating me for

    Anything else I should do? My assessment is on Wednesday

  10. #10
    Senior Member nukecad's Avatar
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    Just be yourself, dress as you would normally you're not going on a date.

    The assessor will not be interested in how long you have been waiting for your assessment, they will just want to assess you now.

    And again, remember that they are not assessing your medical condition, they are assessing your ability to do any work.
    Your medical condition(s) just back up what you are saying about your capabilities for work.

    Don't be too surprised if the recording equipment suddenly turns out to be 'broken'.
    It happens often - too often.
    (The suspicion is that certain places don't have a working recorder at all and just bring out the broken one).

    If it is 'broken' then you have to go ahead anyway, so the only way to be totally sure is to take your own recording equipment.
    It needs to be able to make 2 identical recordings, one for you one for them, and must be on tape or CD. Digital recording is not allowed.
    Usually the cheapest way is 2 cassette recorders, the recorders don't have to be identical only the tapes.
    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.

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