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Thread: ESA assessment rate £43?

  1. #21
    Senior Member nukecad's Avatar
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    The court case ruling about assessments and notifications was a very interesting one, but it only means that in future the assessment companies (not the DWP) have to change the wording on the f2f appointment letters.
    The current/previous wording was ruled not stromg enough to make a f2f clearly mandatory.
    Which I don't think that they have done yet, but no doubt C-19 gives them the opportunity to change them.

    The fit note requirement doesn't need to be on the letter refusing ESA, because if there's no ESA then there is no requirement for fit notes.
    That letter just has to tell you about MR, and then the MR refusal letter has to tell you about appeal.

    The fit note requirement should be in writing on the letter they send when they agree to pay ESA during appeal, and I believe that it still is.
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  2. #22
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    That's what I meant by in writing, on "any" letter.

  3. #23
    Senior Member nukecad's Avatar
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    They only need to put it on letters where it's relevant. They can't be expected to put every condition on every letter.

    There is no point in the DWP sending out letters about paying ESA and needing fit notes during appeal until an appeal is actually lodged.

    The problem here is that phaedra's friend did not get a letter about paying ESA during appeal and needing fit notes until 17 months after the ESA ended.

    From what I read in the first post then the appeal wasn't lodged for 17 months; because of lost paperwork and so on.

    Any backpayment of assessment rate can only be paid on the production of fit notes for the period, or when the appeal is won.

    She could ask the DWP to use a bit of discretion and pay it without the fit notes in the circumstances, but they dont have to.
    The law is quite clear that for a claimant to be treated as having limited capability for work and paid Assessment Rate ESA "that the claimant provides evidence of limited capability for work in accordance with the Medical Evidence Regulations".
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  4. #24
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    It needs to be in writing somewhere, I never said every letter.

    But the ruling was clear, if the DWP dont put the obligations in writing, then they cannot treat it as an obligation.

    Now of course you may say they have a templated letter that does put it in writing, which you done and under normal circumstances this will be read by the claimant.

    But there is precedent for this also, my own case several years ago. The DWP tried to terminate my ESA when I didnt attend an assessment, their argument was that because they normally send out letters to people in my position that they they could "assume" I got the letter, I argued that was complete nonsense and whether other people get these letters bears no relevance to myself. But they kept going on about the balance of probabilities. I then studied some UTT cases, found some that were relevant which ruled in favour of the claimant, prepared my tribunal appeal document, referenced the 2 cases, and within a week a DM overruled the previous 2 DM's. Odd right?

    The only thing that changed on the appeal submission was I added legal references. No new evidence was supplied.
    Last edited by worried33; 22-05-20 at 02:37.

  5. #25
    Senior Member phaedra's Avatar
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    Hi Nukecad

    Tribunal letter arrived today, she won her appeal, decision made by secretary of state on 08/11/2018 has been set aside

    They decided she has limited capability for work, scored 18 points.

    She's still worried the DWP won't give her the back payment as they'll want sick notes going back to 2018!!

    Thank you very much for all your help, just waiting for her PIP appeal now
    Last edited by phaedra; 15-06-20 at 15:38.

  6. #26
    Senior Member nukecad's Avatar
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    Good news on the tribunal result,

    Although it could possibly have been better, what exact wording does the tribunal award letter give?

    "Limited Capability for Work" is WRAG.
    "Limited Capability for Work and Work Related Activity" is Support Group.

    Fit notes are no longer important, the tribunal award overrides/cancels any requirement for fit notes.

    If she has been awarded WRAG then that will only pay/backpay the WRAG component if she first claimed ESA before April 2017, which from what has been said here I think she did.

    Note that it is possible that she may have to argue for the WRAG component to be paid/backpaid, - some newer staff are unaware that it is still payable with claims that originated before April 2017.
    (Their poor training just says that WRAG/LCW is no longer paid, which is correct for new claims but isn't correct for older claims).

    It might not be a problem, but if it should happen then a quick MR usually gets it sorted out because the DM's do know that it's still payable.

    PS. Did she put a claim in for UC?
    Last edited by nukecad; 15-06-20 at 16:53.
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  7. #27
    Senior Member phaedra's Avatar
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    Thanks Nuke, it says "Limited capability for work"

    I'm not sure when she first claimed ESA, I'm not sure she knows either!.

    I did try and tell her she wouldn't need to supply sick notes from 2018 but she's not convinced.

    No, she hasn't applied for UC, she was too scared it would cause a problem with her appeal.

    I have tried explaining things to her but she simply doesn't have the capability to understand or process it, she believes the DWP will deliberately make things difficult for her. Not surprising given what they've put her through for the last 19 months.

    She's also convinced the DWP will try to make sure her PIP appeal falls

    She is very vulnerable to this sort of thing and the DWP have certainly made her fears worse.

  8. #28
    Senior Member nukecad's Avatar
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    I still believe that she would be much better off with UC, especially as the tribunal award is LCW and not LCWRA.
    Look back at the figures I calculated before, especially the Disabled Child Element in UC.

    But I can also understand her reluctance given what has been going on with her ESA.

    It's good that you are supporting her, and maybe once the ESA has settled down (and the PIP if she wants to wait that long) you can try to persuade her to claim UC instead.
    But as I see it the longer she waits the more she is losing out.

    Give a shout if I can be of any more help.
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  9. #29
    Senior Member phaedra's Avatar
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    Thanks Nuke

    I'll try to persuade her about UC

    I was planning to visit her but unfortunately I was in a crash last week (on my birthday!), a large Transit in oncoming traffic pulled into the middle of the road (40mph), the driver jumped out and let it continue on its own!.
    It came over to my side of the road and straight into me. Car is a write off but I escaped almost unharmed, the usual cuts and bruises, aggravation to my already poor shoulders and neck and some heart fibrillation problems which seem to have settled down.

    Fire brigade had to get me out so that was fun!. Still very sore and stiff, Skoda Ensure have been very good so far (it's a lease car) and got me a loan car the next day, it's a Range Rover Evoque! which is the same height as the Yeti was but an absolute pain to get into! what a badly designed car!!.

    I'm not sure what Skoda will do about replacing the Yeti, my contract was due to end on the 27th but I extended the lease for 2 months the day before the accident, I'm going back onto Motability and have a VW Tiguan on order which should have been here in May. It now looks like it won't arrive until August at the earliest.

  10. #30
    Senior Member nukecad's Avatar
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    A belated happy birthday. Sounds like you had an interesting one.

    The transit driver was no doubt trying to keep a 2 metre distance.

    From a Yeti to an Evoque; the neighbours will think you have won the lottery. (You could tell them it was a birthday present).
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