Rightsnet discussion forum

Mobilizing

2013-05-15T09:47:08+00:00

Does anyone know whether the dicta in CE/151/2012 (use of a wheelchair), identified at paragraph 8, have been overtaken or expanded upon? I have a client with a rare condition which means that one of the legs is swollen, deformed and sore and it cannot bend. It needs to be kept elevated and can be painful if knocked.

ESA tribunals & Mental Health

2013-05-22T12:01:30+00:00

This has just appeared on the BBC web site:

http://www.bbc.co.uk/news/uk-22620894
Does anyone have any other details?

ESA Transitional Protection - Premiums

2013-05-24T14:30:08+00:00

Hi,

I’ve read the previous posts about transitional protection and when it should come to an end, but I can’t find anything that confirms what I’ve been told by the DWP in this case…

Client was getting IS due to ill health, migrated to ESA, failed WCA, appealed and was successful. While they (couple) were under appeal the partner claimed CA - it was only claimed for a few weeks due to a change in the DLA claim.

When calculating the arrears the DWP have stated that they only have to pay transitional amount up until CA was claimed, then, because there was an additional premium in place there is no longer an entitlement to TP. Is this true?

I can’t find anything on it and the DWP have sent me their ‘evidence’, but even that doesn’t confirm what they have said.

Thank you in advance.

Tribunal refusal to re-instate ESA appeal on the basis client’s new claim has a better chance of succeeding

2013-05-23T15:03:08+00:00

We have a case where a vulnerable client with learning disabilities withdrew an ESA appeal early in 2013 as there was no support in place. No hearing has taken place either by paper or orally.

Client ends up in hospital, social care alerted due to crisis with care and no income and new claim made for ESA, however as new claim within 6 months of previous disallowance, DWP are declining to pay until new WCA….......

Tribunal Service asked (nicely) to re-instate appeal due to exceptional vulnerability, decent letter from social worker sent with request but request refused as judge felt client’s new claim has a better chance of succeeding given health deterioration….....

We have challenged this assertion as judge notes in decision they haven’t seen any evidence to support our request (ie apparently ‘no social worker letter’.........a little odd given it attached to original faxed request?!)

However we still have vulnerable client with no money…...we have asked DWP to pay due to clients health and vulnerability but we appear to hitting the proverbial brick wall…..

All suggestions as to how we can move this forward much appreciated.

ESA income related and contribution based

2013-05-09T10:49:07+00:00

Hi folks

I have been tying my mind in knots over this one. I’m fairly sure I am right (or it feels like I should be right), but am struggling to put the argument forward in practice. I’ve read previous threads on a similar vein but can’t quite reconcile them with this particular case.

My client was refused ESA on 23/8/2011. She had previously been in receipt of WRA component of ESA, payable as CESA. On her initial claim form, she ticked the box stating that she wished to claim CESA only. She wins her appeal on 22/3/2012, and is placed in the support group. She is paid arrears of the support component back to the date of the decision on her appeal. She does not receive the EDP, until she makes a ‘claim’ for it in April 2012.

I’m arguing that she should be entitled to IRESA, payable as the EDP, from August. The argument is that ESA is one benefit with two elements (C and IR), which is clear from S1 and S6 of the Welfare Reform Act 2007. Her claim was a claim for ESA, not a claim for IR or CESA specifically. The fact that she ticked a box stating that she only wanted to claim CESA on the original claim form does not change this. To use an analogy, if you claim DLA, and only indicate care needs on the claim form and state that your mobility is fine, but then subsequently go to a tribunal and get an award of the mobility component as well, the DWP can’t refuse to pay you the mob component because you ‘didn’t claim it earlier’.

I am of the opinion that as soon as the tribunal allowed the appeal in March, her claim should have been superseded to include IRESA from the date of the original decision in August. Now, I have had a look at reg 6(e) of the D&A regs, but this talks about a supersession when a claimant becomes entitled to a different benefit (eg. if a claimant becomes entitled to DLA and is therefore entitled to an SDP). In this case, the client is entitled to a premium in the same benefit, because of a change to that benefit (the support component leading to entitlement to EDP), so as far as I can see this reg is not relevant.

I’m a bit lost on how to argue this one, and would appreciate any thoughts.

Cheers

Jol

Treated as having Limited Capability for Work

2013-05-23T12:04:34+00:00

Could someone clear this up for me - I find ESA confusing at the best of times….

If you are treated as having LCW due, eg to being in hospital and/ or recovering from treatment, does this mean that you have to be placed in either the WRAG or SG as well?

Thanks!

An argument for ESA CONVERSION APPEALS

2011-09-07T16:21:35+00:00

I note that people now seem to be getting dates for appeals against ESA conversion decisions (eg for people who have not been held to be entitled to have their awards converted).

I am posting this to alert people to a potential argument in such cases.

Please note that advisors using this argument must still prepare to argue the appeal on the basis that if it is rejected then the claimant scores 15 points etc. and so does have limited capability for work. It would be very upsetting to run this argument only to have it rejected and then be in the position of not having sought medical evidence etc. that could have won the appeal with a more conventional approach!

Also, please note that the submission I have prepared is relatively “fact light” - you may wish to provide a summary of other points including:

1. Exact date claimant was sent the notice they were entering conversion phase.

2. Fuller discussion of what the notice they received contained.

3. Explanation of how not having a notice that explained the LCW test meant they did not bring certain matters to attention of DWP etc etc.

Anyway, the argument basically works like this:

1. Only people who have been notified in accordance with the rules can have a conversion decision made on their existing award of IB or IS.

2. For a notice to be valid it must be in the form specified in the rules.

3. That includes the principle that it must contain details of how LCW is assessed and that LCW is the test that will be used to determine entitlement to ESA.

I attach a draft submission and a sample of what the DWP obviously think is a valid conversion notice.

If the argument is right then effectively the SSWP has not made a single valid conversion decision since he started the migration process.

R2R again

2013-05-21T14:55:38+00:00

Hello

I have today met with a Dutch National who can to the UK in August 1997. He worked in the UK between 1998 and July 2001 before claiming Incapacity Benefit which he was in receipt of for a long period from July 01 to June 2012. He then had a brief period on ESA (income related) from June 2012 - January 2013 before he went into prison for 3 months. He tried to claim ESA again since he came out of prison however a decision was made last week that he does not have a R2R.

When looking at grounds for an appeal I wondered whether the client would have a permanent right to reside as someone who has legally resided here for more than 5 years, under Art 16 2004/38 directive. If periods prior to 2006 are considered then I wondered if he could be considered legally here for the period he was working and then if he has retained worker status by being temporarily unable to work for the period that he was on Incapacity Benefit?

The client has no family members in the UK and is not married or seperated from a UK national.

My concern is that he has been on sickness related benefits since 2001 therefore this may not be considered as temporarily unable to work.

If they do not consider he has a permanent right to reside I am assuming he would not be able to establish a right to reside any other way as he would no longer retain worker status due to his period in prison?

In the meantime I have advised him to claim JSA.

Any advice on whether I am thinking along the right lines would be gratefully received.

ESA contributions : 365 day rule?

2013-05-21T10:32:13+00:00

I have a client who was in WRAG of ESA for 12 months pending appeal to be placed in the Support group of ESA. She won and was placed in SG in April 2012, apparently for 12 months although she was not informed of the length of the award.

She has just received a letter stating they cannot pay her ESA from April 2013 under 365 day rule.
I called JC+ who told me she had been put back in the WRAG in April 2013. No medical. No ESA50. Nothing, just an arbitrary decision. She also wasnt informed of this change in writing or verbally.

Can someone please clarify (sorry if this has been done before) as i was under the impression that the previous time in WRAG did not count toward the 365 day thing once support group applied.

I have obviously appealed, but i thought she would get another year.

Any advice is appreciated.

ESA eductional materials

2013-05-20T15:01:11+00:00

EMPLOYMENT AND SUPPORT ALLOWANCE EDUCATIONAL MATERIAL

Here is a link to some educational materials that I have created about sickness benefits (employment and support allowance. You can view the material at http://www.authorstream.com/Presentation/hbhelp-1821661-it-makes-you-sick/. You can see on the right of the page that you can download this presentation as a powerpoint presentation or as a video.

You are welcome to download this material and use it for any non-profit purpose to promote information about benefits provided that you give me a credit.

The material is also available on YouTube at http://youtu.be/ua0cJ5NXIa0

Please do forward this email to anyone who might be interested in the material.

Best wishes

Chris Smith, HB Help
email, chris dot smith at hbhelp dot co dot uk
web, http://www.hbhelp.co.uk
phone, 01273 474070
Post PO Box 2660, Lewes, BN7 2RW