PIP Mandatory Reconsideration. Do I make my own points suggestions or not?

[worried33]

I have never heard of an assessor appearing at a tribunal, the system is essentially setup to protect the assessors from accountability.

DWP turning up is very rare also, maybe a higher chance at upper tribunal. This is probably a good thing, as been not represented should improve a claimants chances.

At a tribunal I think its just best to get rid of emotions. Concentrate on what you need to do to change the decision, on my DLA tribunal my effort was put into discrediting the assessor, which in turn led to them completely disregarding the report. Make sure you make eye contact when speaking to them, address them properly, and be honest and cooperative. If they find you credible then your evidence (even without medical supporting evidence) will bear weight. Make sure you know where you stand in law before going there.

The doctor's at tribunals tend to concentrate on questions that are actually relevant, but they cannot physically examine you. You may get grilled, but understand they have a job to come to a decision in a very limited amount of time.

The tribunal are on no one's side but the law.

[nukecad]

Remember that you are the appelant, there to give your evidence to the tribunal and answer any questions that they may have for you.

You are not there to question anyone, that's the tribunals job.

Whilst the court could 'direct' the assessor (or anyone else) to appear as a witness it is not seen as important to making their judgement.
They can see what the assessor wrote, they can see/hear your challenge to that - they have no need to question the assessor.

They do occasionally direct the DWP to attend so that they can question them. (Usually more to ask why they are being stupid and not doing their job properly).

Quite often the DWP simply ignore court directions (to attend or even to provide specific evidence) and somehow manage to get away with it.
It's becoming very common in UC cases that the DWP don't even provide their court Bundle.

But if/when that does happen then it doesn't go down well with the judge at all.

The judge could simply reject the DWPs case entirely under rule 8, lapse the appeal in the claimants favour, and give the claimant exactly what they are asking for.
However doing that gives the DWP an automatic right of appeal against the use of rule 8, so the FTT judges avoid doing it.

Instead they still hold the tribunal hearing, give very little weight to anything that the DWP has provided, and find in the claimants favour.
That way the DWP can only appeal to the UT if the FT have made an Error of Law.

You might find this (and the whole thread) of interest:
https://www.rightsnet.org.uk/forums/...273/P15/#69984

[worried33]

I think that happened in my case nukecad, I kept getting letters from the tribunal with the date approaching where they were trying to get the DWP to back down, as they considered it a waste of time, but they wouldnt, and the one of the letters showed the tribunal was not happy with the DWP.

At my actual hearing the judge pushed the DWP evidence to the side and said right in front of me they wont be using it.

[scotleag]

I'm not trying to discredit the assessor as an individual but the validity of her report. I'm thinking if I can demonstrate that there are a number of FACTUAL errors throughout - which there are and easily provable as such - then it calls into question everything else in the report. I'm aware that the tribunal is where I state my case and try to prove the veracity of that which is why I want to demonstrate that I've given ATOS/HP every chance to respond to my queries PRIOR TO APPEAL. Failure to do so can therefore be included in my written submission to the tribunal. Alternatively, if they do respond then I have the opportunity to write my own critique of that in my written submission. Either way, the assessor's report doesn't appear in the documents to be considered by the tribunal unchallenged.

[scotleag]

I'm not sure whether I should start a new thread or not but I've received a work capability assessment questionnaire today. What I'd like to know is if the left hand knows what the right hand is doing, i.e. could I have been sent this because my PIP claim has been rejected? If so, it might strengthen my case at appeal as the DWP would be acknowledging a relationship between the two benefits even though they claim there is none.

Alternatively could it be because I recently asked for and received a subject access request for my first WCA? Might that have triggered off something in the system?

It's perfectly possible neither of the above is connected as my first interview was in September 2017. The decision then was to place me in the WRAG. The prognosis stated "I advise that work could be considered within 12 months. The available evidence suggests review in the medium term. He has had a change in medication and this may be increased and be more effective."

As it's now almost two years since the assessment it could just be coincidental with the PIP claim & SAR request (I hope I'm learning to understand the abbreviations used on this site correctly). Though as I'm 64 next birthday I thought I might have been left to fester quietly, jobs suitable for someone of my age and health not exactly being overflowing.

From the SAR form I can see that the decision maker has simply accepted the advice given from the health professional's report. It says here that a person will be treated as having limited capability for work if they have scored 15 points, either in functional or mental health assessment or combined. I "scored" exactly 15 points, all from one section of the physical assessment, and nothing anywhere else. While I think I should have scored more I didn't complain as while I thought I should be receiving ESA i wasn't of the opinion that I qualified for the support group.

Over the past two years my conditions have worsened somewhat but I remain of the view that I don't qualify for the support group though I certainly haven't improved so as to move off ESA.

However, my experience with the PIP assessment contrasted to the WCA in 2017 suggests much depends on the approach and attitude of the health professional. PIP being brusque, business-like, get the boxes ticked. WCA being listening, sympathetic & allowing me to expand on my written answers.

So I am worried I might get the 'wrong' type of health professional. I'm presuming here that I will be called in for assessment regardless of how I reply to the questionnaire.

What happens if my score drops below 15 points and it's decided I no longer qualify for ESA? I understand I will be required to look for full-time employment and provide evidence I am doing so. That's not an issue that concerns me overmuch. I can fulfil the requirements though I doubt, having been self-employed for a quarter of a century, too many employers will be rushing to offer a job to someone close to retirement age, with disabilities and who is used to being their own boss. Though if there were and I were capable of doing the job I'd be delighted.

It's the process of changing benefits and possible effects on amount received I'm worried about. Specifically:
Will I lose money? My household consists of myself and my wife (six months younger) and currently we receive £287.80 ESA per fortnight. If I have to go on Jobseekers Allowance will this reduce?

Is it possible that as I would be moving to a different benefit that I may have to apply for Universal Credit and be subject to the delays in payment that appear to be common with this, such as waiting five or six weeks to receive anything?

If I were to ask for a mandatory reconsideration and possible appeal thereafter what happens in the interim? Would I stay on ESA until mandatory reconsideration has taken place or would I have to apply for JSA/UC?

Or could it be that ESA would end after a mandatory reconsideration upheld the original decision and I then had to apply for JSA/UC while I waited for an appeal to be heard?

Alternatively would the amount I receive remain the same but just be paid via a different benefit? In which case the whole process would appear to be a waste of time from the DWP point of view and actually increase their costs as they'd have to pay a health professional to undertake the assessment.

Also important is whether I would receive notice of end of benefit or would it just stop? I mean can they simply stop ESA as of the date of decision even though it might be two weeks later before I receive notification? Would I therefore lose out on applying for a change of benefit or can it be backdated to day when ESA stopped?

The other worrying thing if they can stop payments before receiving notification is that I could be forced into involuntary overdraft or even see direct debits for things like rent, council tax or energy refused. The first of these obviously being of the most concern.

I apologise yet again for a long post but I do feel I need to set everything down. I really thought I had enough on my plate with the PIP refusal to contend with and now this happens.

[nukecad]

From what you say that sounds to be simply a 2-year ESA review that was due anyway and has no connection to anything else.

A 2-year review would be due in September and they tell CHDA to send out an ESA50 about 6 weeks before the review date, so you should normally be receiving one about now.

15 points on an ESA assessment get's you WRAG, scoring more points doesn't do anything extra.
So once you have reached 15 there is no real point in awarding any more points.
The descriptors that put you in Support Group don't score any points, just satisfying any one of them gives you Support Group.

PIP and ESA assessments are considering very different things; you can't really compare them other than generally as both being disability assessments but for different things.
That's why all attempts to combine them into one assessment have never worked. (and probably never will work properly).

It's a bit premature to be looking at losing ESA; you haven't even sent the ESA50 back yet.
But to answer your questions.

If you were found fit-for-work at reassessment then your ESA would stop from that date, regardless of any MR/appeal.

Unless you have the SDP (which you don't) or have paid enough NI in the past two years (which you won't have) then any new claim if your ESA stopped would have to be for UC.
Once you have claimed UC you can't go back to ESA.

As a couple on UC I would expect you to recieve £498.89 if you were fit-for-work.
Which is about 30p a week more than you would have got with JSA.

If you appealed the ESA and got back WRAG you would then be entitled to an extra £126.11 a month LCW-element on the UC payment. (But only because your original ESA claim was made before April 2017, if it had been made later then you wouldn't currently be getting the WRAG component of ESA anyway).
Which again would be 33p more a week than you are currently getting with ESA WRAG.

And/or you could also say you were unable to work when you applied for UC and ask them to give you a (new) WCA.
Oddly you can do this even though you've only just been found FFW on ESA. It's just one of the things they never considered.
A possible problem with doing that is that of course any new WCA decision under UC would stand from the date it was made, no matter what any ESA appeal found.

[scotleag]

Thank you very much. From what you’re saying it would appear they’re giving me a review after two years rather than the one year recommended at initial assessment. Thanks also for clarification on the support group. Having looked at the descriptors it’s as I thought and I’m not eligible for this group.

I know it’s premature but after what was for me a devastating experience at the PIP interview I want to be as well prepared as possible for the WCA one.

When you say ESA would stop at time of re-assessment is that the actual assessment itself or DWP decision? In the first assessment there were 22 days between the assessment and date of decision. Add on the time it took me to receive the decision and we’re talking a month. Either way I could find out it had been stopped when I find my rent direct debit for instance hasn’t gone through. That’s a nightmare prospect.

Also, do you know if a UC claim could be backdated to date of loss of ESA? The prospect of ESA being stopped, not being able to claim UC for a month, nothing at all coming in during that time and a further five weeks to receive UC is terrifying.

You say it’s impossible to go back to ESA after claiming UC. What then is the point of asking for MR or appeal as even if successful I can’t go back? Unless I don’t apply for UC in the interim and that would mean months without any payments while the appeal process grinds on and would be impossible to do.

I’m afraid I’m really confused by the figures you give. You say as a couple we should receive £498.89. I think I’ve got this part covered and that this is per fortnight and would include housing benefit which is merged into UC. That chimes with the present situation of £287.80 per fortnight allied to housing benefit which is around £105 per week give or take 50p or so. Am I correct here?

Where I’m confused is the next part where you talk about £126.11 LCW element. What is LCW? And if receiving it means receiving £1 per week more than currently how does that square the earlier figure? I mean you reckon we’d be 30p per week better off on UC but then with another £126.11 per month only £1 per week better off. Is there some other element which is lost as a consequence.

[nukecad]

In the order you ask:

The ESA would stop at the date the fit-for-work decision was made.

UC claims can be backdated for up to a month in certain circumstances.
One of these circumstances is "you weren’t told your Jobseeker’s Allowance (JSA) or Employment and Support Allowance (ESA) was going to end".

You would still appeal the ESA FFW decision because any award that the tribunal made about Limited Capability for Work (or work related activity) would then also apply to UC - and from the start of your UC claim.

I hadn't included any Housing Benefit/UC housing element in those examples. But UC housing element should be exactly the same as HB.

I was comparing JSA (fit for work) with UC (fit for work) in the first case. (£114.85/week JSA to £498.89/month UC).
Then I compared ESA WRAG with UC-LCW in the second case. (£143.90/week ESA WRAG to £625.00/month UC-LCW).

eg. for the ESA WRAG the calculation is £143.9*52/12 = £623.56 a calendar month - or just slightly less than the UC-LCW £625.

As for LCW/LCWRA basically:
UC-LCW is the new name for what was ESA WRAG.
UC-LCWRA is the new name for what was ESA Support Group.

(Actually the ESA legislation has always called them LCW and LCWRA too, it's just that everybody used WRAG and SG instead).

PS. I was wrong with that £1 a week difference difference, as you see I corrected it to 33p

[scotleag]

That’s very helpful, thank you. If the worst comes to the worst and ESA ends then it would appear I need to get a UC claim in straight away providing evidence of the date of decision. Though that doesn’t alter the possibility of finding out via the rent direct debit being refused.

I see from your calculations (thanks again) that UC is calendar month rather than four-weekly and that my assumptions were incorrect.

What’s terrifying me is if I’m taken off ESA then I’m going to lose £29 pw (143.90 to £114.85). DLA has ended so I’ve already lost just over £23 per week. That would be a combined loss of over £52 per week. Given our rent is £43 more per week than housing benefit that means we’d be left with around £70 per week for food, energy, water, transport, TV licence etc. before even thinking about clothing or ‘luxuries’ such as internet access. It was difficult enough when I was receiving DLA but this would be next to impossible.

You can see why I’m dreading another interview. I don’t suppose you or anyone else has any stats on how many people in the WRAG are taken off it after they’ve been called back? Or whether it’s the same as PIP in the sense of almost everyone being called in? I don’t suppose there’s much chance of them saying ‘his condition hasn’t improved, if anything it’s a bit worse. Let’s leave things as they are.’

[scotleag]

Sorry, one more thing. Is everything separate? I mean can or will the person conducting the ESA review have access to my PIP interview and report?