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Thread: Hi. Please can you help with a few questions before our first F2F assessment?

  1. #1

    Question Hi. Please can you help with a few questions before our first F2F assessment?

    I'm new here so hello people. I've been reading here for some time as my daughter has an ESA F2F on 20 Nov and I'm guessing most/all of you know how stressful this all is. She is more or less in "this is not happening" mode now, later to become "nervous breakdown" mode, which I'll have to deal with as it
    develops. I am posting to at least try & get a little ahead of the curve, despite my limited knowledge.

    So, our situation: the first date they offered I could not make. This ate up almost 5 months in which I made some phone calls. They tried to set a new date which was also not possible, but I explained I could do just a few days later, any time, any day, & they said no but they would call back.

    Then it went silent for a year. Then they just turned up with this new date in the post, without asking if it was OK. At this point I just want to clear a few things up. I know you are best to get your interview taped & you are supposed to always have someone drive you there and be there for support.
    I will be doing this.

    Q1A: If we turn up (with proof they said yes to taping it), what is the risk this audio recording device will "disappear", or be "not available" for some "unforeseen reason"? And if that happens, should we go ahead with the interview? Or should we refuse to be bullied into signing the consent form & stand
    our ground? Would that result in her benefit being stopped & for how long?

    Q1B: Whilst I'm on that subject, if our F2F doesn't go ahead for any reason & it is their fault, how do I "prove" they cancelled it/screwed up/whatever if they stop her benefit?

    Q2: The 17 descriptors. Will they plod through them in exactly the right order 1, 2, 3, ....., 16, 17, playing with the computer, because it only does it in that exact order, or will they ask about them in a random order to make it harder to know exactly which one they're asking about at any given time?

    Q3A: This is about the outcomes so will be messy. I apologise. Is it still true that she can continue to get ESA in the event of a Fit For Work decision & in the event of losing the MR because this would be her 1st appeal? Or will a doctor's note be needed right through to the appeal date? He's a pretty miserable & unsympathetic git to everyone, & did not issue the original ones, so I've no idea if he will issue it. He just signs for tablets & almost certainly knows zilch about her case. This is actually *my* biggest concern. Then there's always the final option to claim contribution based/New Style JSA for 6 months. That aside, she cannot claim income related benefits due to savings, so that's easy. It will be a 6 month maximum. How long is it taking to get to tribunal these days? I'm not looking for exactitude; more like are we talking a couple of months or a couple of years? That sort of differentiation.

    Obviously we will not be complaining if she is awarded the Support Group. Then there's being awarded the ESA WRAG, on which I can find nothing on that matches her situation. Given that it has been well over a year since the original letter asking her to come in was generated, would this be a case of the first day from which the contribution based ESA WRAG was awarded would also be the last, or would a 365 day WRAG award start from the day on the decision letter? Basically, is it a "might as well" appeal for SG because she's had the year anyway?

    Q3B: In the event of a Fit For Work decision + failed MR + submitted appeal + she has to claim New Style JSA, will the Job Centre be likely to try to force her to sign a completely unreasonable Job Seeker's Agreement, relying on our ignorance & fear of the system to get her to say yes? Please can you please point me in the direction of any guidelines as to what we have to accept as reasonable, & what we can turn down as unreasonable? I will go to that interview too if the cards fall that way, but I don't want to screw it up.

    There, done. Sorry this is so long. Stuff it, I'm posting it now or I'll end up adding more.

  2. #2
    Senior Member nukecad's Avatar
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    Hi Xylophone,

    There are a few things that seem a bit puzzling there, it's maybe just some missing information.
    So I have a couple of questions if you don't mind.

    Is she already on ESA in the Support Group? That's the only way I can see her being on CB ESA for over a year.
    It also makes a difference to what would happen if she was awarded WRAG.

    If she is already in SG then she should currently be getting £111.65 ESA a week, if however this is a new claim she will only be getting £73.10 assessment rate ESA. (Or £57.90 if she is under 25).

    Do you have the date she first claimed ESA? (and was it a transfer from Incapacity Benefit?).

    For now to answer your questions I'll assume that she is currently in Support Group and that this is a reassessment.

    1A: It does happen that the recording equipment may not be available, (or it's 'broken', or they have 'run out of tapes'), and there is not a lot you can do about it in that situation. It doesn't happen as much as it used to when ATOS were doing WCAs.
    There is no legal right to have your assessment recorded.
    If the equipment is not available then they may offer another date - but if they want to go ahead without recording then you can't reasonably refuse.
    Refusal to go ahead in those circumstances would be regarded a 'Failure to submit' to the examination and would usually disqualify the ESA claim.

    1B: Hard to prove conclusively if it's not in writing, however I have had several WCA's cancelled at the last minute and it's never been a problem.
    I had one cancelled 3 times, each time after I had turned up at the centre.

    2: They don't usually ask all the same questions as on the ESA50, and may ask them in a different way.
    They should have already read the ESA50 and so know which areas to concentrate on, but they may/will cover the others to make sure that nothing may have been missed - especially if the claimant has mental health issues.

    3A: If found FFW then ESA will stop being paid.
    Payment of ESA can be reinstated if you appeal, but only once the appeal has been lodged with the tribunal and the DWP informed of that by the court.
    You will need to provide sicknotes all through the appeal until the appeal decision is made.
    Before you can lodge an appeal with the tribunal you have to ask the DWP for a "Mandatory Reconsideration" of their decision, which can take time and no ESA is payable during MR - unless you then lodge an appeal.
    You should still get sicknotes as soon as you are found FFW because then ESA can be backpaid for the MR period once the appeal is lodged.

    Any decision applies from the date that the decision is made, which obviously is after the assessment, so if WRAG then it's 12 months from that decision date if this is a reassessment. (Provided she has not already had a period in WRAG during her current claim).
    However if I'm wrong above and this is a brand new claim then the 12 months is from the date she first claimed.

    3B: You can only claim New Style CB JSA if you have the necessary NI contributions in the previous 2 tax years, (ie. have to have done at least some paid work in those 2 years), so if she has been on ESA for a while then she is unlikely to qualify for New Style JSA.
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  3. #3
    Quote Originally Posted by nukecad View Post
    Hi Xylophone,

    There are a few things that seem a bit puzzling there, it's maybe just some missing information.
    So I have a couple of questions if you don't mind.

    Is she already on ESA in the Support Group? That's the only way I can see her being on CB ESA for over a year.
    It also makes a difference to what would happen if she was awarded WRAG.

    If she is already in SG then she should currently be getting £111.65 ESA a week, if however this is a new claim she will only be getting £73.10 assessment rate ESA. (Or £57.90 if she is under 25).

    Do you have the date she first claimed ESA? (and was it a transfer from Incapacity Benefit?).

    For now to answer your questions I'll assume that she is currently in Support Group and that this is a reassessment.

    1A: It does happen that the recording equipment may not be available, (or it's 'broken', or they have 'run out of tapes'), and there is not a lot you can do about it in that situation. It doesn't happen as much as it used to when ATOS were doing WCAs.
    There is no legal right to have your assessment recorded.
    If the equipment is not available then they may offer another date - but if they want to go ahead without recording then you can't reasonably refuse.
    Refusal to go ahead in those circumstances would be regarded a 'Failure to submit' to the examination and would usually disqualify the ESA claim.

    1B: Hard to prove conclusively if it's not in writing, however I have had several WCA's cancelled at the last minute and it's never been a problem.
    I had one cancelled 3 times, each time after I had turned up at the centre.

    2: They don't usually ask all the same questions as on the ESA50, and may ask them in a different way.
    They should have already read the ESA50 and so know which areas to concentrate on, but they may/will cover the others to make sure that nothing may have been missed - especially if the claimant has mental health issues.

    3A: If found FFW then ESA will stop being paid.
    Payment of ESA can be reinstated if you appeal, but only once the appeal has been lodged with the tribunal and the DWP informed of that by the court.
    You will need to provide sicknotes all through the appeal until the appeal decision is made.
    Before you can lodge an appeal with the tribunal you have to ask the DWP for a "Mandatory Reconsideration" of their decision, which can take time and no ESA is payable during MR - unless you then lodge an appeal.
    You should still get sicknotes as soon as you are found FFW because then ESA can be backpaid for the MR period once the appeal is lodged.

    Any decision applies from the date that the decision is made, which obviously is after the assessment, so if WRAG then it's 12 months from that decision date if this is a reassessment. (Provided she has not already had a period in WRAG during her current claim).
    However if I'm wrong above and this is a brand new claim then the 12 months is from the date she first claimed.

    3B: You can only claim New Style CB JSA if you have the necessary NI contributions in the previous 2 tax years, (ie. have to have done at least some paid work in those 2 years), so if she has been on ESA for a while then she is unlikely to qualify for New Style JSA.
    Hi nukecad just reading this post
    I myself am having an assessment next week I have been in the support group for 18 months if I fail ( which I normally do and have to appeal)
    So you can still claim esa whilst awaiting the tribunal, I only ask because last time they said I would have to claim jsa whilst awaiting the tribunal, which I never done due to my anxiety

  4. #4
    Senior Member nukecad's Avatar
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    Yes, you can still get ESA assessment rate once your appeal has been lodged, but see below about UC.

    As said in the reply to Xylophone above you cannot claim JSA now unless you have paid sufficent NI contributions in the last 2 tax years, which means that you have to have done at least some work to pay NI.
    If you have been on ESA then you will not have been doing such work.

    They will now tell you to claim UC (Xylophones daughter can't do that because of savings) - but you don't have to make a claim for anything, they can't force you to claim.

    If you don't claim UC then you can go back onto ESA assessment rate (with sicknotes) once your appeal is lodged.
    But to do that you will have to stand the MR period without any benefits coming in, which can be for up to 2 months or even longer.
    If you have sicknotes for that MR period ESA can be backpaid once your appeal is lodged.
    (Note that when you ask to go back on ESA having lodged your appeal the phone jockey will try to tell you that you can't, because they are poorly trained and don't know that you can, you just have to keep insisting and ask to speak to a supervisor).

    If you do claim UC during the MR period then you cannot go back onto ESA, either pending appeal or even if you win your appeal.
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  5. #5
    Thanks for the reply nukecad can I ask what the assessment rate is, at the moment I think I get £123-5 a week in the support group, so whilst claiming the assessment rate whilst appealing you don't have to go the jobcentre and just hand in sick notes, and lastly will my housing benefit be affected whilst claiming the assessment rate ie do I have to make a new claim etc thanks again nukecad

  6. #6
    Senior Member nukecad's Avatar
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    Assessment rate is the ESA Personal Allowance only. That's £73.10 for a single person over 25.

    You can send fit notes for ESA online there days: https://www.gov.uk/send-fit-note

    If your ESA is stopped then your council will be sent a HB stop notice, you need to tell the council and change the HB to be paid on Low/No income grounds.
    (They will try tell you that you have to claim UC, they are wrong it is simply a change of circumstances to an existing HB claim).
    See this: https://cpag.org.uk/welfare-rights/r...it-suspensions

    PS. You should start your own thread(s) - especially if you are going to ask multiple questions.
    Some people can get upset if/when someone 'hijacks' a thread that they started for their own question.
    I don't know everything. - But I'm good at searching for, and finding, stuff.

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  7. #7
    Thank you Nukecad. It's really appreciated. I'm getting some sense from her now I've got past the "don't ask questions on the internet because they'll find me" phase of this. I will clarify the exact situation.

    Amazingly, this is a transfer from IB to ESA Support. She has only been contacted once before, in late 2013, by Atos, where she won her case on paper. We decided not to ruffle feathers at that time & ask on what grounds (they didn't say) or for how long (Again they didn't say - I think it was 2 years, but that might be a bit wrong). But Regulation 35 could have played its part. There were serious extraneous circumstances, with unquestionable proof available, at the time, that no longer apply.

    It's our belief that she then fell into the "deferrals" for 3 years. So they re-appeared in 2018, & here we are over a year later.

    I note you said:

    Re 3B: You can only claim New Style CB JSA if you have the necessary NI contributions in the previous 2 tax years, (ie. have to have done at least some paid work in those 2 years), so if she has been on ESA for a while then she is unlikely to qualify for New Style JSA.

    She did have work before going onto IB all that time ago, & so has received contribution based ESA the entire time since she was moved over. I thought that this gave her the necessary NI credits to count as having "worked" for the whole time, & therefore she could claim New Style ESA as a last resort if necessary. If I'm wrong I apologise for re-asking. But if I'm right, she'll still want to know what is "reasonable" for the Job Centre to expect from her, & of course is she likely to get to tribunal within 6 months?

    I couldn't really provide all the details. She's very aware that she's been exceedingly lucky to have avoided them for so long. But equally, she now knows that she is at a disadvantage compared to those who have been through the wringer with this system endless times, survived, & now know what to expect. I'm trying to simplify the case into direct, points scoring statements on the relevant descriptors, without just directly reading the descriptor back to the assessor, & without waffling, but also preparing for scrutiny, both with a warm but likely fake empathetic smile, or a hostile interview.

    Once again, thank you for your time & dedication.

  8. #8
    Senior Member nukecad's Avatar
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    Fine so this was a transfer from IB to ESA, and she was previously reassessed in 2013, at which time they did a paper based assessment.

    You are probably right about the deferrals, they stopped doing any regular reassessments between 2014 and 2016 and just reawarded the ESA for the previous period again.

    These days they (almost) always send you an appointment for a F2F, and you then have to contact them if you can't attend for medical or mental health reasons.
    You need to back that up with evidence from a GP/Consultant/etc. that explains just why you are unable to attend.

    If she was awarded ESA on Reg. 35 back in 2013 then it would seem reasonable for her to be marked as a 'Vulnerable Claimant' with the DWP, which should also help with getting a Home Assessment or even paper based again - if you want to try for one of those options.

    However, from what you say then she could attend but it would be a struggle.

    With regards to the NI situation and claiming New Style JSA.
    You do get NI credits with benefits. (or should do, sometimes they forget to add them but you can check that and get them corrected and backdated if it happens).
    These count fully towards your State Pension, but only partially towards other benefit claims.
    The qualifying conditions for making a new claim for a CB benefit say that you have to have at least 26 weeks Paid NI contributions, in one of the last 2 tax years, and then a combination of paid/credits for 50 weeks in each of those 2 years.

    You can see the qualifying conditions here: https://www.youreable.com/forums/sho...l=1#post165150
    (That 26 weeks paid contributions can be waived in certain situation, but they would not seem to apply here. There's a link in that post).

    So if she was to be found Fit for Work (which sounds very unlikely) then she would have to claim Universal Credit, savings allowing, or claim nothing while she asks for a Mandatory Reconsideration and then ask to go back on ESA if she then lodges an appeal with the tribunal.

    It's good to hear that she is engaging better with you now.

    You also seem to be on the right tracks with the descriptors, just remember that it's not really about her conditions but all about if she could manage to do any kind of work.

    Be aware that they will want to hear the answers from her at any assessment. And may even tell you they don't want to hear if from you.
    Whilst you can go in to 'support' her they do want to assess her, not just what you have to say about her.
    (A legal appointee can answer for the claimant, indeed if a claimant has a legal apointee they should not be made to attend an assessment but if needed then the apointee should go instead).


    A peripheral issue comes up.
    As she was a transfer from IB to CB ESA Support Group then has she been contacted yet about the error that they made when doing those transfers?
    They 'forgot' to check their entitlement to IR ESA as well as the CB ESA.
    Because of this many people were wrongly underpaid, and have now been getting backpayments of thousands of pounds.
    As you daughter was transferred into Support Group then it's possible that she may be one of those people.
    However we would need to know more about her levels of savings since the date of the transfer to be sure.
    If she's always had above £16K then not, but if at anytime her savings were below £16K then probably yes.
    Last edited by nukecad; 11-08-2019 at 05:49 PM.
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  9. #9
    Thank you for your detailed reply.

    Yes, she did receive her backdated premiums. Actually this is eventually what put her over the £16K upper limit. We did an approximate calculation of our own, taking into account all 137 changes in circumstances over the years, and then sent them a ream of paper (sorry about the forest). We gave up at taking into account what further changes in circumstances *would* have happened *if* she had been paid each premium on time over the years, deciding only to argue if the Government's own calculation was way out below the downside of our range, which we didn't specify (we just gave them the fullest, most detailed, well argued information possible).

    Pleasingly, their final calculation was inside our range, & in the upper half of it as well.

    "These days they (almost) always send you an appointment for a F2F, and you then have to contact them if you can't attend for medical or mental health reasons.
    You need to back that up with evidence from a GP/Consultant/etc. that explains just why you are unable to attend.

    If she was awarded ESA on Reg. 35 back in 2013 then it would seem reasonable for her to be marked as a 'Vulnerable Claimant' with the DWP, which should also help with getting a Home Assessment or even paper based again - if you want to try for one of those options.

    However, from what you say then she could attend but it would be a struggle."

    Based on the above, I think we should probably go to the assessment centre on this occasion. Time is now short, & neither she nor I fancied calling Atos, Maximus or the DWP to ask a load of questions and possibly "ALERT" their computer system to a possibly submerged case, and risk bringing it to the front of the queue. That sounds daft in theory, but in practice, I always believe in if it ain't broke, don't fix it, especially when I have been hearing about people being harassed all the time for years when they are clearly not Fit for Work, & even if they were anywhere close, this business is not doing anything useful & is probably having the opposite effect. As we never contacted anyone about the reasons for the IB --> ESA award all those years ago, & the letter just said "Your benefit is changing to ESA", stated the group, the amount, & when the change would take effect, but did not state how long the award was for, or what the reason was, Regulation 35 is possible, but it is only an educated guess. She did have to fill in an ESA50, so it will have been a paper based assessment. The rest is unknown, & I also doubt we would get a GP appointment at such short notice. She also goes to her GP appointments with me, so it's pretty hard to go to one of those & then argue she can't go to her assessment if I go with her.

    If I were not here, then the argument would make sense. There are complex mental health problems & they're not going to just disappear in the near future. She would definitely require a home visit in those circumstances. Is there any way to find of if the DWP considers someone a 'Vulnerable Claimant', & how would she/we go about this? Knowing someone is considered a 'Vulnerable Claimant' may not help her on this reassessment, but fingers crossed & all goes well, it might be worth knowing about this in the future. I didn't know they had such categories.

  10. #10
    Senior Member nukecad's Avatar
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    I agree that it's probably best to attend the assessment centre so that they can see just how things are.

    I'm not sure if the DWP would/could tell a claimant if they were marked as vulnerable.
    It's one of those areas where telling the person they are considered vulnerable could make them worse.
    They may tell a legal appointee, or a professional advisor who was helping them, but the same safeguarding considerations would have to apply.

    There is a lot on the web if you search for 'vulnerable claimant ESA', probably too much.

    CPAG are considered 'The Experts' on many legal benefit matters, here's their page on Safeguarding of Vulnerable Claimants.
    https://cpag.org.uk/welfare-rights/r...-practitioners

    And here is the DWP's own guidance from 2015, I'm not sure if there have been any changes made since it was published.
    There probably has been due to various court cases, but it's a good place to start.
    https://www.whatdotheyknow.com/reque..._passthrough=1

    PS. I'm not sure if her backpayments should be disregarded as savings or not.
    Payments of over £5K that are due to 'Official Error' should be usually disregarded for as long as the current claim is still active.
    But that's a lot of CoC's so who knows if one of the CoC's negated that?
    Ther rules on disregards can be complicated to start with - and the DWP seem to be playing silly buggers with disregards for the IB-ESA error at the moment.
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