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How to appeal an ESA decision that puts me in the work-related group?

Discussion in 'Finances, Work, and Disability' started by Sasha, May 17, 2012.

  1. Sasha

    Sasha Fine, thank you

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    I was receiving IB and some weeks ago was told that I'd been placed in the work-related activity group for ESA. I asked them to reconsider, summarising the key points of my original application, and they've told me they've reached the same decision. I'll be appealing this - I don't have enough energy for basic self-care let alone any left over to work or even attend one of their work-focused interviews. I've just received a written record of why I wasn't put in the support group (just a list of statements saying "The available evidence suggests the patient can do X, Y or Z"). I wasn't given a medical assessment so all the evidence they've got is my application, which they've clearly ignored.

    I've written to my local CAB to ask for help but in the meantime (or in case they're snowed) I'm looking for info on what to do. I'll be asking my GP to write in support, once I know what to ask him for.

    There's quite a bit on the net about what you should do to get your 15 points to get ESA but I've got ESA, I'm just in the wrong group. Can anyone direct me at info specifically about how to most effectively appeal the decision to put me in the WRAG group?

    Attending a tribunal in person is out of the question for me so I need a strong appeal on paper.
  2. peggy-sue

    peggy-sue

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    Somebody posted this information some time ago on another forum, but I have hung onto it, to pass on!

    There is a little-known something called the Exception Rule.
    This is a copy and paste of the info.


    Exceptional circumstances
    29.- (1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work is to be treated as having limited capability for work if paragraph (2) applies to the claimant.
    (2) This paragraph applies if - -
    ........
    (b) the claimant suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were to be found not to have limited capability for work.

    Obviously, the doctor or other medical person needs to believe that M.E is a real illness, and that the effects of being forced to work are detrimental to the claimant.

    Regulation 29 (2) (b) is very important because it seems to be the only way to be found to have limited capability for work, and still pass the medical and receive the necessary benefits.
  3. Sasha

    Sasha Fine, thank you

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    Hi peggy-sue - thanks for replying!

    The justification document says that I've got a significant level of disability such that I would have limited capacity for work so I don't think that's in dispute (actually I'm not sure I understand the opening sentence of that rule of exception that you quote!). It also says a return to work is unlikely for at least two years. Finally, it says I don't have limited capability for work-related activity.

    If I understand it (and I don't think I do) it seems to be saying that my health is going to prevent me from working for at least two years but there's no reason why I shouldn't do some work-related activity.
  4. Esther12

    Esther12 Senior Member

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    My sympathies Sasha. From what I've heard, you're relatively lucky to have got in to the work related activity group. The new system is finding lots of very seriously disabled people to be fit to work, and pushing them in to poverty. Hope things improve for you though. All the best.
  5. justy

    justy Senior Member

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    Hi Sasha, Peggy Sue is right that there is an excpetions rule. You have to prove that it would be injurous or detrimental to your physical or mental health if you were found capable of work OR for work related activity. So you have to prove that you couldn't attend a work related interview or programme to help you into work, at the present time. I strongly suggest that you join the benefits and work website. Its a one off fee for a year and you can then access all their documents which lay out how to appeal, what evidence you will need etc. I know some PWME are getting inot the support group on appeal. I think you will also need a very clued up advocate to go to the tribunal on your behalf if you cant attend.(thats just my opinion - i dont know what the facts are on that issue)
    http://www.benefitsandwork.co.uk/

    Good luck!
  6. Sasha

    Sasha Fine, thank you

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    Thanks, Esther - I'm relieved I don't at least have to fight to get ESA but it's ludicrous that so many severely disabled are being put in the WRAG.

    Thanks, Justy - when I googled I found that site but thought it might be a scam because they wanted a fee so that's reassuring! I'll sign up.
  7. justy

    justy Senior Member

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    Rest assured Sasha - it is a very good site with tons of info that you can download and save. They also have a forum for members for questions.
  8. peggy-sue

    peggy-sue

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    It is an excellent site - perfectly above board. I haven't joined because I'm not eligible for any benefits.
    I have been recieving email updates of their work and been able to read the public information.
    I've got years' worth of their updates saved....
    (I'd been at uni, then caring for my Dad - my contributions were not up to date to get IB, and my OH's income is just enough for me to be refused any other. I see the point in this - I'm all for means testing for a load of things, but it does put a strain on our relationship. I'm now a dependant (with no rights, we're not married) rather than a partner.)

    Sorry the exception rule isn't what you need - but it's still a really useful thing to know about - maybe somebody else will need it.
  9. Sasha

    Sasha Fine, thank you

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    Sorry to hear about your situation, peggy-sue. Is DLA also contribution-based? It's not means-tested. Of course, DLA is to be changed to PIP so more fun coming up for those of us on that as well...

    That's true about the exception rule - it could be a lot of help to the right person.
  10. snowathlete

    snowathlete

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    Hi Sasha,

    Hopefully i can offer you some good advice, having been through the ESA nightmare myself.
    I have had some sucess (now in the Support group) and some stuff is still outstanding (my complaints are with the Independent Case Examiner and the Parlimentary Ombudsman).

    First, your not alone, this is standard. They are treating you badly, but your not the only one, so dont let it upset you, your just a number to them. We (sick people) are much easier to refuse that benefit thiefs who are willing to lie, and have ability to go through the process. That is why we (sick people) have been targetted, not the benefit thiefs. Government only cares about paying out less, and we are the easiest to deny benefit to.

    Second, the system is deisgned to tire you the sick person out. It is a long and upsetting road trying to deal with it, but if you go till the end you have a good chance of a good result IMO. Decide now whether its worth it or not. For me, i was so outraged and it was so vital for my support that i decided i would persue it even if killed me. Im not being flippant, the system is hardwork, we have serious illnesses, it may kill you if you want what your entitled to, because they make it so very hard.

    Third, the depratments administering ESA are corrupt, and this includes the tribunal service who you would think were indpendant, but they arent. They will screw you the same as the DWP. They will do things like state what the law is, and then do the opposite.

    Tips.
    1. Keep each letter they send you , in chronological order. Print an additional copy of any letters you send and put the copy in the folder too. If you dont then you will later have to spend a week trying to do this with your ME brain...not easy.
    2. Go to your GP, and any other doctors (the more senior the better) that you can and get written statements about your illness. My work sent me for assesment by Occupational Health which i thought would be dreadful, but it was the most useful bit of paper i got, because it gave such a damning prognosis. Effectively, medically speaking, if they reach a different conclusion to you even in an ATOS medical, they need someone more senior, else your consultant trumps theirs. I would even pay privately for this if needs be, its that useful.
    3. If they want to do a medical ask for a domesticial one. Your GP will need to write a letter saying you need one.
    4. Get your MP involved, copy him (or her) into your letter, go see him and get his support, which he is likely to give you. Get him to chase stuff up when they muck you about.
    5. After your medical, request a copy of the medical notes. They often say appauling things that you can easily challenge.
    6. Understand that the DWP and their agents (Jobcentre Plus, ATOS) are one organization, and the Tribunal Service is another. This means, if they both do naughty things (and they will), you need a complaint against each seperately.
    7. Request a copy of their complaints process early on, and progress through it. They wont find in your favour. But you need to do this before you are allowed to go the ICE and Parlimenary Ombudsman - who might.
    8. Tribunals. They should apply the law based on medical evidence, but they rarely do. I recieved a letter saying that my case wouldnt find in my favour unless i went in person (this before the hearing - so the decision was predeterminned before the hearing and based on in person attendance - something the law does not require) so be aware of this. You may have an easier time if you go in person, think about that, but personally, i feel, why should I go make myself more ill?
    9. If you refuse to attend work related activity like i did, then be prepared that they will probably cut your benefits off. But still, i woudlnt personally go. Make it difficult by asking questions: How are they going to ensure your welbeing is not put at risk by going, given your illness and the affect activity has on it. What steps are they going to take to ensure the Disibility Discrimination Act (and the more recent one that i cant remember at the moment) is considered before forcing you to do anything as your illness is covered by it. You may ask them to do the Work Focused Interviews (or whatever they call them) by phone instead (hard for them to say no because its a reasonable request). Also refuse to repeat any information that you have already given to any of the DWP departments already - given your illness its unreasonable to expect you to repeat yourself. They will say their computer systems are not joined up. You say, "not my problem", they can use a phone to call whoever they need to, write it out by hand, whatever, not your problem. You have given the information already, its unreasonable to expect you to give it twice.
    10. I didnt get help from Citizens Advice, but you might want to consider it. I had alot of support from my family, my father especially, and my wife. I dont think i could ahve managed it on my own, so get help where you can get it.

    I hope this helps. I wish you luck with it. I'll try to answer questions if i can, if there are any.
    Best
  11. Sasha

    Sasha Fine, thank you

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    Thanks, snowathlete - that's all very useful advice. Thanks very much indeed for putting the time in to do that - I'm sure I'm not the only one who will find that helpful.

    I've been on the apply-get refused-appeal-get refused-appeal again-get cheated-complain to MP-appeal etc. etc. merrygoround loads of times before and am going in with my eyes open. I have no intention of attending a work-related interview in person or anything else - I'm not even fit for a phone call so I won't be doing any work-focused stuff that way either. I'm hoping a CAB helper will represent me at tribunal, if there is one.

    I'm glad you succeeded - how ridiculous that you should have had to have gone through all that lot. Completely agree with you about the cynicism with which DWP and its satellite organisations are approaching this. I'll be getting everything from them in writing so that it can be more easily challenged.

    I've succeeded in getting every disability benefit I've ever applied for, at the highest rate - and I've had to contest most of them. At one point, I was passed by a medical assessor as fit for work immediately when I was confined to bed and having to have my food cut up for me because I didn't have the energy to do it myself. For me, it's certainly worth pursuing, on principle if for no other reason.
  12. Wonko

    Wonko Senior Member

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    If you dont attend a WFI without what the DWP considers good reason then you will be sanctioned, that is have the work related activity component of your benefits stopped, probably without notice. From what I've read it can take many months of fighting to have this reversed.

    Unless you have someone to do the phone calls/ running around for you this isnt a route I would recommend you go down, it's far less stress to explain the situation to the interviewer IMO.
  13. Sasha

    Sasha Fine, thank you

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    Hi Wonko - I'm not physically capable of attending a WFI so I've got no choice there, I'm afraid. My GP will write a letter supporting my inability to attend (he has before, in similar circumstances). If the DWP doesn't consider my inability to get out of bed sufficient reason for me to not to cross the city and be in an interview with them, there's no hope for any of us.

    Fortunately, at the moment, I don't receive payments of IB/ESA because, for now, I have a source of income that takes me over the income threshold but because I qualified for IB, the govt has been paying my NI contributions, which are extremely important to have. So I'm in the lucky position where, for now, they can't hurt me by suspending payment. However, I may well lose that other source of income, at which point I'll need ESA, and I want to make sure I keep getting NI contributions paid so I must appeal and get myself in the Support group where I belong.

    I realise how lucky I am that I can contest the ESA decision under far less stressful circumstances than many people. How shameful for DWP that they put us through this.

    By the way, I've been reading through some of the material on that excellent site that peggy-sue mentioned and it's great stuff - I wish I'd read it when I made my original ESA application. It costs £19.45 to join the site for a year and you can download all their stuff for free while you're a member. It's going to be a big help in drafting my appeal. My DLA will be up for review in January (or sooner, if they PIP me) and the site deals with that, too.
  14. snowathlete

    snowathlete

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    This is true. It can be helpful though because they will often cut you off unreasonably and you can turn this to your advantage later in your complaint by demonstrating unreasonable action on their part. Like Sasha says, many people dont have the option of going anyway, but I think your point is good because it highlights the issue that your cash could stop and you might be dependant on that. When it happened to me, i went overdrawn, which got added to my list of damages in my complaint, but of course, i could have done without it in the first place.

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