ESA & PIP - IMPORTANT to KNOW HOW

All too often I'm getting messages from people who don't understand the process for Appealing a zero points score from the DWP decision makers, following their face-to-face ESA or PIP Assessment.

It is crucial that you do not rush your request for a Mandatory Reconsideration, as how you challenge the initial decision will have a direct effect on your later ability to win a Tribunal.

If you get wound up by what you see as lies written by the healthcare assessor, and rush into a tirade against the injustice, you may be throwing away any chance of winning a later Tribunal hearing. You only get one chance at this. Don't throw it away.

Be aware that the DWP Decision Maker could only make his or her decision on how many points to award you based upon what you said in your original claim form, together with what the healthcare professional wrote in his or her report. So the DWP Decision Maker may be working with incomplete information.

All too often, people thought the assessor was supporting them, only to have their hopes dashed when they received a refusal letter with zero points.

This is not the time to be upset or angry. Instead, you must phone the PIP/ESA helpline and request a copy of the decision (which will give you the Decision Maker's reasons and will contain a copy of the healthcare professional's Assessment Report).

Read this very carefully. It is probable that the Decision Maker needs you to supply further medical reports from your doctor and hospital specialists, so you can correct the Decision Maker's understand of your disabilities.

Identify where you think the DWP Decision Maker got things wrong, and ask your doctors and specialists to supply you with written statements to challenge where you think the Decision Maker got things wrong. THIS IS WHAT YOU SUBMIT FOR MANDATORY RECONSIDERATION.

If the DWP telephones you in advance of studying the decision, or before you've gathered these new medical reports, then confirm that you require a Mandatory Reconsideration, and say that you'll be sending a challenge in writing. DO NOT discuss anything over the phone. It's a trap!

In all likelihood the Mandatory Reconsideration will not change the original decision -- although it does happen something, it is unusual -- so don't get your hopes up.

Once you have a written response to the Mandatory Reconsideration, you are free to submit an Appeal to the independent Tribunal.

The Tribunal will then look at what you wrote in your original application, what the healthcare professional wrote, and at what challenges you submitted for consideration at the Mandatory Reconsideration stage. THE TRIBUNAL WILL NOT (NORMALLY) LOOK AT ANYTHING ELSE. The job of the Tribunal is to look at the evidence that evidence was available to the DWP Decision Maker at the Mandatory Reconsideration stage, to see if he/she made a correct decision. Nothing else.

I'm writing this because too many people rush into the Mandatory Reconsideration without understanding the importance of getting it right. You can't keep on submitting new evidence after the Mandatory Reconsideration.

The Tribunal is not interested in how you are on the day of your Tribunal hearing, they're only interested in how you were on the day of your face-to-face assessment by the healthcare professional. (Please reread this paragraph several times!)

There is only one exception to this, which is if the Tribunal Judge adjourns the hearing with a request for you to obtain specific medical evidence to clarify something you've already said.

So, please, be aware that the most important part of the ESA or PIP process is where you challenge the initial decision by requesting a Mandatory Reconsideration.

The Mandatory Reconsideration is also where many Fibromyalgia sufferers can use ESA's Exceptional Circumstances regulations 29 or 35 (or equivalent in PIP) if they're never going to be able to score points using the so-called "descriptors" used in the application form and in the face-to-face assessment. (You can't apply these regulations before then.) And it must be done during the Mandatory Reconsideration phase, else the Tribunal may not be able to consider applying them to your case.

Feel free to ask questions. The message is not to give a knee-jerk response if someone from the DWP phones you immediately after you got a zero points letter. You may be hopping mad or totally upset by the unfairness of the system, but stay calm and tell them you will be sending your challenge in writing. Otherwise, it becomes very hard to help you.

All the best,

John

[Hidden]

Here's a link to my explanation of the ESA Exceptional Circumstances regulations 29 and 35. healthunlocked.com/fibromya...

[mattjoachim]

The Independent Case Examiner who looked at my case and I spoke with on the telephone told me that he seen case similar to mine that the Decision maker awarded ESA at MR stage as I had enclosed further Medical evidence but in my case they would not change their decision. Also 3 months before my Tribunal date and after the ICE had looked at my case and informed both myself and Maximus that my assessment lacked detail in many areas , had omissions and errors. He told Maximus to pay me 300 pound and for their manager to write and apologize to me .Copies of this letter was sent to the DWP by Maximus as they wrote and informed me and send me a copy also. This was done to give the DWP DMs an opportunity to look at my case again. Guess what the DWP sent me a letter the same week as my Tribunal to say they looked at the new evidence and could not change their original decision. So even though the DWP were made aware my assessment lacked detail in many areas had omissions and errors, it is still fit for purpose in the eyes of DMs in the DWP

[Hidden in reply to mattjoachim]

Hi Mattjoachim,

Perhaps it would be useful to explain what an Independent Case Examiner (ICE) is, and how people get one to look at their case. Here's the link gov.uk/government/organisat....

Note that it says "We can’t treat a complaint as a challenge to a benefit decision (a request for ‘mandatory reconsideration’) or an appeal against a benefit decision, ...", which explains why the DWP Mandatory Reconsideration person ignored your Independent Case Examiner.

Anyhow, did you have any more luck with the complaint he sent to Maximus and the £300 demand?

John

[mattjoachim in reply to Hidden]

Yes I won at Tribunal.but my point is DMs in the DWP when made aware by Maximus themselves that the medical assessment was lacking detail,had errors and omission and Maximus themselves write to the DWP to tell them exactly that so they have a chance to look again at my case before Tribunal date. Yet the DWP after being made aware of this, still wrote to me and said their original decision was correct to award 0 points and was sufficient enough in detail for a DM to make this decision. So DMs in the DWP make decisions to award 0 points even knowing that the assessment had errors and omissions and lacked detail; As the ICE told me that the very least a DM should have done is referred my case back to Maximus is the first instance as it was quite evident from looking at the paper work that my assessment was carried out incorrectly ,Yet a DM decided to award no ESA. I heard an MP raise a question in the House of Commons similar to what happened in my case as to, Why DMs in the DWP make decision on inadequate assessments rather that refer them back to the assessors. There was no clear answer back

[Hidden in reply to mattjoachim]

You are absolutely right, Mattjoachim, but you're assuming that the decision makers (or someone within the DWP) is tasked with using their brain to do what's sensible. The problem is that there's no such job.

The DWP's own employees are under the cosh. They get regular beatings if they don't follow the unwritten rules. People who work in decision making tell me they have bosses breathing down their necks. So, Mattjoachim, although people in the decision making office might agree with you and your Independent Case Examiner, no-one is going to stick their neck out to support you.

Does that mean going to an Independent Case Examiner is a waste of time? No. Once again, it's important to keep focused on the Tribunal. The Tribunal will look at all your arguments, and that Independent Case Examiner's report will be high value evidence.

Remember, the original application, with the Work Capability Assessment and original decision, followed by the Mandatory Reconsideration, are part of a sausage machine. They just turn the handle and Zero Points brown envelopes come out the end.

John

[GrandmaDylan]

When I had to go to tribunal after an assessment I unfortunately kept saying that I was even worse now than when the medical assessment they told me that wasn't the issue. The only reason I won the tribunal was because I told them that the assessor had lied about my being able to walk to the local supermarket and do my shopping. I had told her that sometimes I could go in the car with my husband and shop in the little tesco metro. I'm almost 59 and if the retirement age hadn't been upped to 66 and a half I wouldn't have to live in dread of the brown envelope coming through my letter box for the next 7 years.

[Hidden in reply to GrandmaDylan]

The assessor "lied", surely not 😳 ?!

Pleased you won your Tribunal .

John

[pratapjethwa]

Already system waste of time after waiting for 1 year and won tribunal for esa got 18 points and in wrag but Dwp no payment for esa benefit.The system is just of time.

[Hidden in reply to pratapjethwa]

I had that. Won Tribunal but no money arrived. My MP got it sorted. Write/email your MP.

John

[pratapjethwa in reply to Hidden]

i have already since my M.P. not much of a Help.

[pratapjethwa in reply to pratapjethwa]

hello you help was welcome and you have answer my question in esa change of circumstance regulation 35 apply to me and there was error of by tribunal fail to look at my o/h health reports .

[Hidden in reply to pratapjethwa]

Ah, there can be a problem with Reg 35 if it wasn't mentioned at the Mandatory Reconsideration or, at the very latest, in the papers you sent to the Tribunal Service.

From my understanding, the Judge may not be able to simply apply common sense and rule that Reg 35 applies.

There's a few people on this forum who are in the WRAG Group, who should have had Reg 35 applied, but didn't. We need to find out whose responsibility it is to invoke these ESA Exceptional Circumstances regulations 29 and 35. I got my doctor to make reference to them in additional information requested by the Tribunal.

**************

Now this raises another interesting question. Both regulations are about potentially disastrous consequences in you're not put on ESA and/or exempted from Work-Related Activities. Crucially, they completely bypass the points scoring work capability assessment. As such, I am thinking that this may be the only occasionally where the Tribunal can accept new evidence, as versus only looking at the rights and wrongs of earlier decisions. So it may be possible to get your doctor to scribble a note saying there would be potentially serious consequences in they didn't apply reg 29 or 35. However, your good doctor would need to spell out what those "significant risks" are.

I may have this completely wrong. But it's certainly not clear who invokes regs 29 and 35.

John

[pratapjethwa in reply to pratapjethwa]

Hi John try to drawn i had already had o/h doctors but i tribunal failed to it.

[SewingPoodle]

I think all of these posts really important. I have failed once and am being pushed to apply again. The thought of it puts me into a complete tizz. I am wondering if this string could be pinned so people could find it again? May I also thank everyone for their invaluable advice for people like me who are going through or about to go through the process

[Hidden]

Hello absolute crucial advice you have put out for everyone so thank you for your very important input...can I please ask if you did a daily diary with your claim only because I am in process of doing this as it says on the form one can be sent in an others on here advised a good idea i didnt do one with my first claim last year this is my second years claim or renewal kind if thing. .its taken me 17 days upto now to fill this form its driving me insane any way just wonder if you did a diary of your typical day ? Thank you xx

[Hidden in reply to Hidden]

Hi DontGivUp,

No, I didn't keep a diary, but it is a good idea because pain and Fibro symptoms aren't visible.

Be aware that the Decision Maker can choose to ignore things like a diary and even your doctor's submissions. But that's not as crazy as it sounds 🤔.

ESA sends you on a Work CAPABILITY Assessment. It isn't an INCAPACITY Assessment. So they're looking to find what you CAN do, whereas your doctors letters and your diary will focus on what your problems are. If ESA worked properly, this would help people get off benefits in a nice way. Unfortunately, it is being abused just to cut payments.

So, is it worth keeping a diary? Yes. The Tribunal will look at it. As I say, your efforts are all about what happens at the Tribunal hearing. Too often, everything that happens before that is just the government playing mind games.

Anyhow, you can use your diary to publish the funny things on this forum 🤗.

John

[Hidden in reply to Hidden]

Hi John,, thank you for you input, I really appreciate the advice you can offer thru your own experiences, it helps us to understand more clearly on what what..? Thank you xx

[Tim61]

Hi Johntheguy,

Very good information!!!

There’s a fantastic forum called Benefits and Work, on the internet, who have all the information & help you could need to filling in Benefits forms , preparing for a tribunal etc. Run by persons with fantastic insight into these problems, & plenty of information & experience from people who have gone through the process.

CAB can also be very helpful, and some have there own trained Benefits advisors .

Best wishes Tim61.

[Hidden in reply to Tim61]

Agreed, Tim,

There's lots of info on the Benefits and Work website. Trouble is that people are only looking there AFTER they're already in difficulty. Also, it takes a lot of work to dig the info out. The purpose of these two linked posts is to forewarn people and ensure their focus is on the Tribunal. Otherwise, if they've not done things right in the earlier stages, it may be too late.

As for CAB, the difficulty is getting an appointment and, even then, quite a few of the advisors aren't experts. Just nice people trying to be helpful.

John

[LOU-LOU-01]

HELLO JOHN, WHAT A WEALTH OF IMPORTANT INFORMATION. Is there anyway I can get a printed copy of your facts. No way I can remember any of it with my Fibro head.

All the best

Lou-Lou

[Hidden in reply to LOU-LOU-01]

If you look at the menus at top of your browser, there should be a print option. Sometimes there are three vertical dots, top right of smartphone screens.

John

[LOU-LOU-01 in reply to Hidden]

Cheers Johntheguy, tried three dots but then brain suddenly went into gear and I remembered Ctrl P and that worked. Thanks.

Lou-Lou