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Thread: ESA Support Group Descriptors

  1. #1

    Question ESA Support Group Descriptors

    Ok, I understand that it’s a different scoring system when it comes to WRAG and support group. However, I’m a little confused as to why they put me in to the WRA group when this is how it was scored:
    Everything for WRAG was 0 except “Initiating Actions”, which according to the scoring was 15 by both the DM and HCP.

    Now, this is where my confusion is:

    Schedule 2
    13. Initiating and completing personal action (which means planning, organisation, problem solving, prioritising or switching tasks).

    (a) Cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions. 15
    (b) Cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions for the majority of the time. 9
    (c) Frequently cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions. 6
    (d) None of the above applies.0

    Schedule 3
    Initiating and completing personal action (which means planning, organisation,
    problem solving, prioritising or switching tasks).

    Cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions.

    Am I missing something or are the DWP contradicting themselves?

  2. #2
    Senior Member nukecad's Avatar
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    The descriptors are as you say exactly the same so if you have been awarded 15 points for Schedule 2, activity 13(a) then you should also have been awarded SG on Schedule 3 activity 11.

    I have found some case law similar to this, but it is from 2012 and so although the descriptors are the same ones the numbers are different, 16(a) and 10, and the descriptor wordings were different back then.
    The DWP were arguing that although the descriptors were the same the actual assessment for LCWRA was more stringent.
    The Upper Tribunal ruled against them and awarded LCWRA.

    The upper tribunal ruling: http://administrativeappeals.decisio...%202011-00.doc
    The legislation in force at the time with different descriptor wordings/numbers:http://www.legislation.gov.uk/uksi/2...0080794_en.pdf

    You may consider that it's MR/appeal time pointing the error out.

    BUT-
    A risk here could be if they suddenly decide they made a mistake and that you don't fit activity 13(a) after all, award you less points for 13(b), and so find you Fit for Work.

    I would definitely get some help from a local welfare agency if you are going to challenge this.
    Last edited by nukecad; 01-18-2019 at 04:43 AM.
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  3. #3

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  4. #4
    Quote Originally Posted by nukecad View Post
    The descriptors are as you say exactly the same so if you have been awarded 15 points for Schedule 2, activity 13(a) then you should also have been awarded SG on Schedule 3 activity 11.

    I have found some case law similar to this, but it is from 2012 and so although the descriptors are the same ones the numbers are different, 16(a) and 10, and the descriptor wordings were different back then.
    The DWP were arguing that although the descriptors were the same the actual assessment for LCWRA was more stringent.
    The Upper Tribunal ruled against them and awarded LCWRA.

    The upper tribunal ruling: http://administrativeappeals.decisio...%202011-00.doc
    The legislation in force at the time with different descriptor wordings/numbers:http://www.legislation.gov.uk/uksi/2...0080794_en.pdf

    You may consider that it's MR/appeal time pointing the error out.

    BUT-
    A risk here could be if they suddenly decide they made a mistake and that you don't fit activity 13(a) after all, award you less points for 13(b), and so find you Fit for Work.

    I would definitely get some help from a local welfare agency if you are going to challenge this.
    Thank you NukeCad and for the case law. As I suspected.

    If I am totally honest, it gets a little bit more complex too - if only it were that simple lol.

    I don't even know where to begin to be honest. This error is one of many to be honest. However, with the aid of CPAG bible I got off ebay for a couple of quid, I've kept on top of it every step of the way to date (which I will detail after my Tier Two complaint has been investigated and resolved - don't want to prejudice the investigation).

    The issue I have at the moment is that I had to call back for a copy of the original decision to be sent first class leaving me only two weeks for a MR.

    You would think that was fine, but I am aware of what my medical report gave but that the DM overruled that (part of the complaint as to the reason of how I know that - the huge delay and then a further delay which resulted in a second complaint to CHADA).

    I got 15 points but made up of a number of the descriptors according to the complaint manager at CHADA who dealt with my complaint. They have also admitted that they have contributed in part to the maladministration and upheld my complaint (this have been included in the tier two DWP complaint).

    So as I haven't got a copy of my medical report (despite it being requested multiple times), due to time constraints, I have had to put my MR in based solely on my decision letter as an administration error and that I'm not disagreeing with the medical evidence just that I believe it to be an error of law as you described above (the wrong box was ticked lol).

    However, my biggest question, and I don't know if you have any advice on this: If they do look at the original medical report and allocate the correct points in the correct descriptors (still 15 points), I would have used my one and only MR. I would then have to do the tribunal route if I wished to query the medical evidence on its merit. Is there any scope for a second MR should they reallocate the points and allow me to challenge and provide further medical evidence etc? Am I making any sense? Happy to clarify though

    Summary: DWP made a mistake on paper (not automatic support group based on my original post), I'm challenging that as an admin mistake and not based on medical evidence mistake. If they redistribute the 15 points, can I get a second MR based on medical evidence and not an admin mistake?

  5. #5
    Senior Member nukecad's Avatar
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    Interesting one.

    You can only have an MR once for each decision, if your are not happy with that one MR then you appeal.
    (Whereas the DWP can take a new look as many times as they want to, you can ask then to look again but it won't be an MR so they don't have to).

    They would probably argue that they have made a correction, which is not a new decision so couldn't have a MR.

    Howerver you could ask for an 'Anytime' Revision, or an 'Anytime' Supersession a slightly different thing.
    This AgeUK factsheet explains the differences between MR, Revision, and Supersession:
    https://www.ageuk.org.uk/globalasset...isions_fcs.pdf

    Of course if they now say that they made an error and the points are spread rather than being 15 points for Sch.2, 13(a) then that's a new bucket of frogs.
    The UT ruling above would not apply at all if that is the case.

    If they didn't award Sch.2, 13(a) then Sch.3, 11 wouldn't apply either.
    But are they now just saying that to avoid awarding SG? How would you prove that if they did?

    If you accept what they are saying and just try to challenge the points there is no guarantee that you would get 13(a), and thus the SG descriptor 11, reinstated.

    Just getting more points would not change the WRAG decision, you can have as many points as are possible it's still only WRAG.

    I think that you definitely need the paperwork, including the letter admitting their error, then take it to a good welfare advisor (one who has a legal team) to get help if you are going to be challenging this.

    If you accept that the points are 'spread out' then you accept the WRAG decision.
    I would say that you need to show that they did indeed originally award all 15 points for 13(a) and have later tried to change that to your detriment.
    That's going to be very hard to prove, but you might get a sympathetic judge.

    PS. Be careful with that old CPAG Handbook, they are on ebay for a reason - they are out of date and the original owner has bought an up to date one.
    If using an older one then you have to double check that the part you are interested in is still up to date, laws change and new case law is made.
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  6. #6
    Quote Originally Posted by nukecad View Post
    Interesting one.

    You can only have an MR once for each decision, if your are not happy with that one MR then you appeal.
    (Whereas the DWP can take a new look as many times as they want to, you can ask then to look again but it won't be an MR so they don't have to).

    They would probably argue that they have made a correction, which is not a new decision so couldn't have a MR.

    Howerver you could ask for an 'Anytime' Revision, or an 'Anytime' Supersession a slightly different thing.
    This AgeUK factsheet explains the differences between MR, Revision, and Supersession:
    https://www.ageuk.org.uk/globalasset...isions_fcs.pdf

    Of course if they now say that they made an error and the points are spread rather than being 15 points for Sch.2, 13(a) then that's a new bucket of frogs.
    The UT ruling above would not apply at all if that is the case.

    If they didn't award Sch.2, 13(a) then Sch.3, 11 wouldn't apply either.
    But are they now just saying that to avoid awarding SG? How would you prove that if they did?

    If you accept what they are saying and just try to challenge the points there is no guarantee that you would get 13(a), and thus the SG descriptor 11, reinstated.

    Just getting more points would not change the WRAG decision, you can have as many points as are possible it's still only WRAG.

    I think that you definitely need the paperwork, including the letter admitting their error, then take it to a good welfare advisor (one who has a legal team) to get help if you are going to be challenging this.

    If you accept that the points are 'spread out' then you accept the WRAG decision.
    I would say that you need to show that they did indeed originally award all 15 points for 13(a) and have later tried to change that to your detriment.
    That's going to be very hard to prove, but you might get a sympathetic judge.

    PS. Be careful with that old CPAG Handbook, they are on ebay for a reason - they are out of date and the original owner has bought an up to date one.
    If using an older one then you have to double check that the part you are interested in is still up to date, laws change and new case law is made.
    Thanks again for the information, NukeCad.

    I agree with your approach but would challenge them to prove one of two things:

    1. The DM who scored 15 points as described above is incompetent and would fall within maladministration which has now made section 35(2) relevant because of how it has affected my health.
    2. They did not make a change at my detriment.

    The crux of it all, is that they have handled my claim so badly that whatever happens they won't get out of it smelling of roses, but in fact the opposite.

    Can I PM you and give you some more details; some details I don't want publicly out there at the moment due to the ongoing complaint but is very relevant? I also want to check something that someone from the DWP told me, but before I post it, just check with your knowledge bank too?

    Yeah, I know the CPAG Handbook is out of date. I have two at the moment:- 2016/17 and 2017/18 (but use the latter one). I find it useful as a baseline, but before I use it as a weapon, I double check it's working and functional too (after an employment dispute seven years ago which blew up in my face as I had found and used out of date legislation which meant I was out of time).

    Like you, my knowledge isn't too bad but my own case is foxing me at the moment. However, like you say, I need to get everything in front of me first before I (or Welfare Advice Service) consider my next steps.

    Given my complaint is currently with the Director General's Complaints Team without a Tier One investigation because of yet more maladministration; ICE explained that given the length of time since I made my original complaint and neither an acknowledgement or an investigation taking place, I now have the right to a Tier Two investigation automatically.

  7. #7
    Quick supplemental to add as to why they may have changed the original HCP scoring. I tried to chase up my home visit, and there was some confusion as to whether I would need an assessment or not. Due to the rush and lack of time, I submitted my PIP report from April 2018 (exactly six months earlier) but still ended up with the assessment. According to both the DWP and CHADA, anything submitted to CHADA will be sent back in the file to the DWP. Perhaps the DM used both reports to make their decision and overruled the recent HCP? Who knows anymore lol.

    Symptoms of my medical condition are starting to kick in, so I am taking myself off until later on Saturday to prevent myself spamming my own topic with racing thoughts.

  8. #8
    Senior Member nukecad's Avatar
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    Sorry there is no PM facility here, and you shouldn't put your contact dateails, email etc. in plain sight on any forum.
    (Even if it's only there for minutes some webcrawler/spider/bot will 'harvest' it, they never sleep - that's how google etc. catalogue stuff).

    TBH If you have already gone down the ICO/complaint route then you should stick with that, preferably with proper legal help rather than just someones opinion on a forum.
    We can help but we are just benefit claimants, we are not lawyers and don't have legal training.

    As you say, from your own experience you know what can happen if you try and do legal disputes without proper legal help.
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  9. #9
    Ah, didn't know there wasn't a PM system and would never put my email out there (too much spam as it is).

    I think I've summed it as best I can. There are some more details, but nothing of significance that I can think of right now.

    I'm with you on the legal/benefit claimants thing, I just wanted to thrash out ideas there.

    So, this bit of information I was given...
    I live in a full UC area. When my partner stopped working to care for me we had to claim UC sadly (although, I'm not closing my New Style ESA claim until I'm no longer eligible for it). Anyway, when I was venting my frustrations with UC to the ESA guys, I was informed and asked why I didn't apply for IB ESA. I explained that I was in a full UC area etc. He replied, nope we can process your claim for IB ESA. I didn't even think this was in law anymore once you are in a full UC area.

  10. #10
    Senior Member nukecad's Avatar
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    Was that this week?
    If not you may have still been in a Live Service not a Full Service area.
    If it was this week then he's talking about a new law that came into force last Wednesday.

    You can, in fact have to, now claim IR ESA (or IR JSA, or Housing Benefit) instead of UC again - IF you have the SDP, or had it in the month before the new claim and still qualify.

    (eg. If you had ESA with SDP and were found FFW then you could, in fact would have to, claim IR JSA instead of UC, if it's within a month of the ESA claim being closed).

    This was brough in on 16th January to prevent the Natural Migration to UC of those with SDP.
    Last edited by nukecad; 01-19-2019 at 01:12 AM.
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