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Thread: Esa mandatory reconsideration

  1. #11
    Senior Member nukecad's Avatar
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    They seem to be having problems with their own guidance on MR's at the moment, and requiring MR's in writing even though their own rules say you can ask over the phone (or by enail, or on a UC journal).

    If they have asked for a written reauest and more evidence then that is what you need to provide at this stage.
    Until you have a MR decision, or a refusal to do an MR, then you can't yet go to appeal.

    Whether or not to claim UC at this time is a decision that only you can make depending on your circumstances. (I would claim it - see below for my reasons why).
    The advice always used to be that you should avoid it - but that advice is now out of date, things have changed but some advisors haven't caught up.
    I'll try to set some things out that may help you decide.

    You should only not claim UC if you are totally sure you will get your ESA back.
    Remember that any MR/appeal here will not give you a new ESA award, it's only about missing the WCA and you will still need to have a new WCA.
    If for any reason you don't get your ESA back then you will have lost out on benefits until you do eventually claim UC, and there will be no backpayment for that time.
    Remember also that if you do get ESA back it's going to be Managed Migrated to UC in a couple of years anyway.

    If you do claim UC now then, you will need to say on the application that you are too ill to work.
    You will then have to supply Fit Notes and will be given an appointment for another Work Capability Assessment. (The fact that you didn't attend last time will not matter at all - this is UC and they are not interested in that).
    You will only be paid the standard rate of UC for the first 3 months, until you have had that new WCA and found to have LCWRA. (It sounds as if you will get LCWRA with your GPs support).
    You will be paid more with UC-LCWRA than you would with ESA Support Group. (so once in payment it will eventually compensate for those 3 months).
    If you do continue with the ESA appeal then that will only be for the date when ESA stopped until the date you claimed UC.
    If you win that appeal then UC-LCWRA will also become payable from the start of the UC claim until the date of the new WCA decision. (backpay for those 3 months).
    Once you have had the new WCA under UC then the decision of that applies. (Whether or not you continued with, and won or lost, the ESA appeal).

    As I say the decision is yours to make.
    If it was me then I would claim UC now, for the following reasons:
    Whatever happens you are going to have to have a new WCA, either under ESA or under UC.
    If/when you get the LCWRA following a new assessment then you will get more money with UC-LCWRA than you would/did with ESA Support Group.

    Whether you then continue the ESA appeal will depend on if you could cope with it mentally.
    If you do win an ESA appeal then you will be due some backpay, but you will still continue on UC you can't go back to ESA once you have claimed UC.
    If you don't win the ESA appeal, and haven't claimed UC you will lose all those months of money when you could have been getting paid UC.

    In essence:
    If you claim UC now and win an ESA appeal you will not have lost any money, and will be paid more ongoing.
    If you claim UC now don't win an ESA appeal then you will have been getting money, and should get more following a new WCA.
    If you don't claim UC now and don't win an ESA appeal then you will have lost out money for all the months you are waiting.
    Last edited by nukecad; 09-18-2019 at 11:36 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.

  2. #12
    Hello Nukecad, thank you for the advice.

    If the DWP agree to reassess me for ESA via a paper re-assessment (I had a paper assessment once before sent directly to the DWP), which is what I shall request with the MR, would that re-assessment carry over for a UC claim?
    Last edited by leo12; 09-22-2019 at 02:29 PM.

  3. #13
    Senior Member nukecad's Avatar
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    Yes the decision from any new ESA assessment, paper or face to face, would also apply retrospectively to the start date of the UC claim.
    (Be that fit for work, WRAG/LCW, or SG/LCWRA).

    However that doesn't happen automatically and you would have to tell UC that you had won a ESA appeal and so want the LCW/LCWRA award adding to UC as from the start of your claim in accordance with - Regulation 19 of "The Universal Credit (Transitional Provisions) Regulations 2014".

    It's always safer to assume in cases like this that UC and ESA don't talk to each other, (because they don't), so you have to tell each one yourself what has happened with the other.

    That regulation says that if you had an existing ESA award on the date that you claimed UC then the equivalent award is added to UC from the start of your claim without any waiting, and without the need for a new WCA.

    Remember though that if/when you claim UC the ESA award will still be fit for work at that time, which is why you will have to start UC with fit notes and a new WCA.
    It's only if/when you win the ESA decision that you will then have had an ESA award and Regulation 19 will come into force retrospectively.

    You can see that Reg.19 in full here: https://www.youreable.com/forums/sho...l=1#post133915
    Dont worry about all that legal language, if you win the ESA appeal the just quote "Regulation 19 of 'The Universal Credit ......." to UC.

    One slightly unusual thing that could happen (I've seen it happen before) is if you have a WCA under UC and get a LCW/LCWRA decision from UC before you have the ESA appeal.
    In which case you should inform both the court and ESA of the new UC award.
    I've seen that situation result in the court ordering the DWP to give the ESA award equivalent to the UC award without needing another ESA assessment.
    (A sort of reverse of Reg.19 if you like).
    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.

  4. #14
    Hi Nukecad,

    Am struggling with my health. I have questions regarding the MR letter. My GP has said he will assist with this in addition to the medical letter. Is there any way in which mentioning the Equality Act 2010 can be useful to me when I am being asked to give 'good cause' as to why I did not attend the assessment? Do I also have to give 'good cause' as to why I am asking for a MR beyond the one month limit? I have been told by CAB that I have to give a good reason as to why I have not been able to ask for a MR earlier and that reason has to be valid until now. I am struggling with the mandatory reconsideration part - my GP's letter is ready to go, except for this part.

  5. #15
    Senior Member nukecad's Avatar
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    I would just give the same 'good cause' reason as the 'good cause' reason why you did not attend the assessment in the first place.

    If your GP's letter supports one it should support the other.

    And yes, you can say that a home/paper assessment, and being allowed to make a late MR should both be 'reasonal adjustments' under EA10.
    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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