Text from DWP regarding ESA - Fibromyalgia Acti...

Fibromyalgia Action UK
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Text from DWP regarding ESA

Hello,

I posted my ESA forms 2 weeks or so ago and received a text on the 24th July from DWP saying, 'We've received your Statement of Fitness for Work (Fit Note). This will now be actioned. You don't need to contact us.'

How long does it usually take to receive your decision on a claim and how will I know? Letter or text?

Thanks

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Hi you do tend to get a letter.some have got phone calls as well do not know if that has changed .you should hear anywhere from 3 to 8 weeks

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Unfortunately, it tends to vary according to the area you live in and how many cases they are dealing with. Hope you hear soon.x

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I had all my notifications byou text but when they send you your assessment date it will be by letter as well as you need this towards ID and it can take anything up to 12 weeks to get this through depending on how many cases they have to deal with. Just make sure that when you go to assessment to answer each question how you are on your worst days DO NOT REPLY aye well I can do this or that some days but not others cause they will then take it as you can do that they are very sneaky and DON'T be afraid to refuse to do any of the tasks they ask you to do just say I'm sorry but I can't manage that or words to that effect. Sorry for going on a bit but its important I KNOW cause they twisted round a lot of what I said and did at mine and now I'm having to fight their decision. GOOD LUCK with it all.

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Keep an eye on your bank account payments usually come in before a letter does.

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In my experience -- I've been through the ESA system twice -- you should prepare yourself for a long wait, as well as the DWP doing everything in their power to refuse your claim.

You don't say where you're at in the ESA claim process, or whether your area has the so-called "new" ESA system, which is part of Universal Credit, or whether they're still running Jobseekers Allowance in your area, in which case it's the old style ESA you're claiming. That's what I'm going to talk about, although the two processes will be roughly similar.

I've no experience of the "new" style ESA claim process. For the old style ESA claim system, you fill in form ESA 50, send in Fit Notes, and will be given an appointment for a "Work Capability Assessment". During this period you keep on sending in Fit Notes and should be paid at the lower "assessment rate" until they finally award or decline your claim based upon the report you get from the work capability assessment.

Do NOT attend the work capability assessment on your own. Take along a witness. And have this witness take notes. You'll need them.

Expect to fail the work capability assessment. It's a stitch-up where the company doing the assessments know which side their bread is buttered.

You should then Appeal -- well, actually, you must submit what's called a request for a "Mandatory Reconsideration". (You can submit the request over the phone 0800 169 0310.) And, again, be ready for long delays.

At each stage, the DWP will take as long as the maximum period it's legally allowed to take. Meanwhile, after failing the Work Capability Assessment, you must claim Jobseekers Allowance. You'll be asked to sign a statement saying you're fit for work (which your doctor says you're not) but, don't worry too much, as your Jobcentre knows you're awaiting a mandatory reconsideration and will treat you differently from normal JSA claimants. Just don't be too argumentative, or they'll "sanction" you and stop your benefits.

YOU MUST GET UP-TO-DATE LEGAL ADVICE BEFORE SUBMITTING YOUR REQUEST FOR A MANDATORY RECONSIDERATION. That's because your later Appeal to the Tribunal Service is a legal challenge of the Decision Maker's decision. It's important you understand that we're not dealing with common sense or fairness, we are dealing with the Law.

After another long wait, the DWP decision maker will contact you to go through your reasons for challenging the original decision (which was based upon the Work Capability Assessment report), and you must have your pre-prepared arguments ready. Your arguments will be based upon errors and inconsistencies in the assessor's work capability assessment report -- which is where your witness and his or her notes will be invaluable. (You'll get a copy of the Assessor's so-called report, and you'll wonder if you and the assessor attended the same work capability assessment!)

Less than 20% of mandatory reconsiderations are successful. That's because the DWP set a target to reject around 80% of all mandatory reconsiderations, and decision makers careers depend upon their own performance reviews.

After you receive your mandatory reconsideration decision IN WRITING you can begin the proper appeal process. (The mandatory reconsideration stage was just a way to slow things down.) You now take your case to the Tribunal Service.

The Tribunal Service is completely independent. If you've kept your head up, and your legal advisor actually understands recent changes in ESA legal interpretation (too many are unaware of something I'll tell you in a moment) then the odds are in your favour to Win the case.

Having won, don't expect the DWP to be in a hurry to pay you all the back payments the Tribunal Court ordered them to pay you. As ever, the DWP will take as long as they're legally allowed to do anything. They'll use every loophole in the law to delay paying you. But, the good news is that they must make good any consequential costs -- such as bank overdraft or late payment fees -- that you incurred since you submitted your claim.

That thing about changes in ESA law I mentioned. You'll recall that the ESA 50 form contained wording asking what you can or can't do. You were asked to tick the most appropriate box. You should also have noticed that each of these questions was preceded by wording like, "Do NOT tick any of the boxes if you cannot perform the action without pain, risk to yourself or to others, within a reasonable time, or to an acceptable standard". The exact wording varies. It is this wording that many Tribunal appeals have relied upon. SORRY FOLKS, THIS WORDING WAS COPIED FROM THE PIP FORM, BUT BY CLERICAL ERROR, WAS OMITTED FROM THE WORDING OF THE ACT OF PARLIAMENT DEALING WITH ESA. It might be included in the ESA 50, but has no meaning in law. The Tribunal Judge will reject any appeal that relies upon this wording!!

Hope this helps. Don't give up. That's what they want you to do. You can win, but be prepared for a long and bumpy road. If it helps, the British government is the only 1st world country to be in receipt of a United Nations censure for its treatment of ESA claimants.

John

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