If you have already attended the DWP/AtoS Work Capability Assessment and have been found ‘fit for work’ or have been declared ‘fit for work with support’ and been placed in the Work Related Activity Group (WRAG) and you intend to appeal against either decision:
Please click on the following two links to download and print out documents to give to your GP in support of your appeal immediately and submit them to the DWP. They may mean that your case will be reconsidered in your favour without having to wait for a tribunal hearing
(CLICK)> Cover letter for your GP
(CLICK)> ESA Appeals Letter for your GP
Please report back to us at info@blacktrianglecampaign.org letting us know the outcome of your case and if you consider this initiative to have been of assistance to you. Thanks.
Good Luck & Solidarity!
Black Triangle Campaign
PLEASE SHARE WIDELY! SHORTLINK TO THIS POST: http://wp.me/p1B02C-mdg
For further background please see:
Two regulations ‘could hold the key to winning ESA appeals’ by John Pring Disability News Service:
Original post:
115 Responses
Might have to try this, as someone who’s been placed into the WRAG, and just received notice of my appeal documents being sent onto the tribunal. This also sounds like the part of the regulations that a social worker mentioned in the “People’s report” of the WCA. They are both worded the same, so are they just putting people into the WRAG in order that they only have to continue paying ESA for a year, rather than indefinitely?!! By definition of these regulations, all those assessed into the WRAG could all fall into the support group? Which would make a lot of people!!
Let us know how you get on. Solidarity, Nathaniel!
Having re-read my appeal papers, they’re not disputing that I have a Limited Capability for Work. But they say I DON’T have Limited Capability for Work related activity. Talk about confusing. Basically as I said above then, I could have been placed straight into the support group on the grounds that I have LCW, but instead they’ve put me into the WRAG group, even though both regs 29 and 35 have exactly the same meaning!!
There is no denying that there needs to be reform… We have sadly seen so many reports of fraudsters who are abusing the system, but this disgrace that is currently happening is beyond belief!
I have a genuine story or you of a gentleman who, despite his illness, is determined to work as he always has… Yet he was denied his benefits inbetween periods of work because of these pathetic assessments.
My mothers Boyfriend had to go and see one of these idiots – He managed to get the assessment overturned but should never have happened in the First Place… Why? Lets look at the evidence 1) He has Prostate Cancer, He may have only a few years to live…
2) When he was working just a month before, He was involved in an industrial accident that left him seriously Injured – Leicester City Council admitted Liability yet he was left 50% disabled as a direct result
3) Following the accident, He had two strikes
4) 5 Different NHS consultants have declared him Unfit for work… One DWP NURSE does a 10 minute examination and declares him FIT FOR WORK!!! Since when does a NURSE know more than 5 TRAINED CONSULTANTS WHO SPECIALISE IN INJURY AND CANCER?
It stands to reason the entire system should be working DIRECTLY with the NHS and NOT as a seperate entity… Or maybe thats part of the problem… There are a few (admittidly a minority) of Doctors who are are quick to sign people off sick who should not be… And does anyone really want to admit that this happens?
Whole system needs a real shake up… And there needs to be an end to these disgraceful and pathetic assessments
I ‘m wondering where the “many reports of fraudsters” are published? If refering to national press stories then please don’t be fooled. I have researched this area now for almost three years Warren and the numbers of “fraudsters” are a tiny fraction. This claim by the Government is a smokescreen to introduce the American system of welfare, using insurance, to eventually fund our welfare services so please don’t be fooled.
time and time again I hear the same abhorrent results. where a nurse at Atos over-rules a specialist. it makes me so angry
Well Good Luck
Letters don’t make a difference. My GP wrote a detailed 2 page letter during my appeal and I had another letter from my private specialist as well as other evidence, but the DWP ignored them all! Was forced to go to tribunal and won. ATOS had lied, manipulated and ‘forgot’ information from my assessment. I found this shocking. The whole thing is a con. I think they refuse everyone and force them to go to tribunal in order to ‘weed out’ and bully who they feel are undeserving (everyone) in the hope that stress will either kill them off or scare people off or hope they are too ill to fight. The only benefit scroungers in this country are ATOS, scamming the whole country for profit. What a waste of money. My health has suffered so much as a result it’s delayed my recovery and my ability to return to work. I’m very poorly now and was suicidal and close to having a complete mental breakdown. To go thorough this process knowing ATOS lies and the DWP ignores medical advice is terrifying. I would never go to an unrecorded assessment in future. If they had been honest in the assessment and actually supported me I may have been back in some part time work by now, or at least on the way. I feel they have taken the time I could have used for healing and finding suitable work and pushing my boundaries in a safe, supportive environment instead I’ve had to fight for my basic right to live. I paid NI & high rate of tax before I took ill and yet I’m denied when I desperately need help. At the moment I’ve had a serious relapse and I directly blame ATOS and the DWP for this. It’s costing them more in the long run. They are clueless idiots. They have left me very poorly and a mental wreck… not exactly in a good state fit for work (or healing). I’m very angry as I really miss working – I loved it, using my skills and helping people… it brought me a feeling of self worth, wellbeing, companionship and money of course! Anyone who thinks being ill, lonely and living in poverty is an easy life is an ignorant idiot.
According to the DWP Contract with Atos, the Atos assessment has PRIORITY, hence letters of support can and are regularly dismissed. In any other circumstance this would be viewed as tyranny where significant documents can be disregarded.
It is Bloody All Disgusting like the Tory Shower
Just because someone can chew and shallow does Not make them capable of Work
nor just going to a Food Take Away Shop to get some Chicken and Chips because
they cannot handle the Pressure of Cooking like using a Cooker
Scrap the Work Capability Assessment and Sack All Incompetent Officials
When People have been Waiting Months for a Reconsider Decision it shows
what a Poxy Mess this Country is Get the Tory Boneheads Out of Office that is
when Hope Begins
It is Un Acceptable that Shower being in Office Any Longer
2 and a Half Years of those Stinking Ignoramuses is too Long
I am going to try the appeal based on regulation 35. Thank-you for pointing me in the right direction. They failed to understand I will not be able to leave the house let alone attend these interviews. They have agreed to do the first one by telephone. Anyone one know if they completely stop benefits until I attend or the appeal process is complete.
I was told that I would be placed on the assessment level, which they have done – until my appeal. I get a total of £38.37 in ESA per week but at least its something!
yes they do stop all benafits i was ill couldent go following week they stopped my incom support that was august 2012 back in feb they stopped mt dla told me i was claiming fraudiletly im vertually crippled with athritis prolapsed discs bone degenarat disease my main nerve is being crushed by bons colapsing still fighting for dla to be given back had my income support back a month after they stoped it so that was september only been able to eat 1 meal a week to keep car on road as unable to walk with out sevear pain
Fascists!
you need an Advocacy to fight this
Where can we find an advocate? I am being harassed by DWP into attending wfis too. I am bedridden 80% of my time with severe ME/CFS, and I also suffer depression and anxiety. They are completely messing me up, and even expect me to complete a 2 week journal of when I sleep, when I am awake, and what I am doing when I am awake!
Neither of the links above allow me to view or download the files (cover letter and appeal letter) – they just go to a google login page. Does anyone know why/where I can get them please? Thanks.
Please sign in to google to view the page
This is great and may actually do some good for a lot of people if they can get their G.P to sign. I sent this to a friend on Wednesday or yesterday presented it to her own G.P who (after much reluctance, thinking it was a trick of some kind) actually signed it for her.
We have some suggestions around getting around the “reluctant G.Ps”. This particular doctor seemed to be in agreement until he began to question where it had came from and grunted “what is this black triangle?, why is there no name?” She managed to muddle around it and explain it is “a support group for people who are appealing disability benefit decisions” (her G.P had already signed her off despite being declared fit for work).
I’m well aware of the failures of Citizens Advice and Council-based Welfare Rights Services etc but I feel if they (and all the other specific Disability-related organisations such as were on board with this and could even give their name to the letter, or even better reproduce it on a letterhead, it would cast a great more authority and G.Ps would be less reluctant to sign it for people.
I agree, we are currently working locally and nationally to get this distributed to GPs through formal networks such as the BMA. Work in progress. We are going to be writing to citizens advice and others shortly. We felt we ought to get it out there ASAP and hopefully it will gather momentum and support
Absolutely True what You say Friend
” Anyone who thinks being ill, lonely and living in poverty is an easy life is an ignorant idiot. ”
The Craven and the None so Blind as Those who will Not See
A Better World Starts at Home in the United Kingdom
With the Abolition of the Capitalist System Slave Labour Exploitation the Con Dem
Tyrant Dictatorship and also with the Redistribution of Wealth from the Rich to the Poor
Hi, has anyone actually successfully used this?
Yes , I have now used it a dozen times or so with my patients. It appears to have been pretty effective. Several decisions have been overturned immediately including a reversal of a tribunal decision and several cases where the tribunal was cancelled and the claimant awarded ESA. If it is applied correctly I think it could be very helpful for some claimants.
My GP pretty much blankly refused to sign this document. I think he was scared by it. Sincerely hope other deserving people have more enlightened doctors than I have.
Hello Dr M Carty.
I few weeks back I managed to leave the forms on my Dr’s desk She was very anxious about even touching them I explained Black Triangle are reaching out to Doctors all over the U.K. This got her attention. ”Black Triangle”. She said her surgery does not like to get involved many others are in same situation and say Oh I will go along to WRAG And give it a try ? She knows im suicidal to start with and trying to flee my home town. ATOS in the original phone call after Brown Envelope had to call an ambulance to make sure I did not kill myself. they transferred me straight over to E.S.A. As we spoke without need for a medical without the need to fill in the questionair form Confirmed later by the Job Centre I called in distress. later C.A.B. Told me everyone has to fill in the form. if so I was callously lied to while suicidal. I have been dumped in to the WRAG Starting tomorrow pending an appeal letter sent by C.A.B. C.A.B. Are so busy im waiting for the appeal worker to call me do my appeal over the phone they tell me to get evidence from G.P. G.P. Refuses but C.A.B. Can ask for it. but C.A.B. Wont.
The whole process is flawed. Doctors seem scarred and very unconcerned at the likely outcome. They have failed be badly as they know im in emotional distress with a big history.
I fear so many are going to suffer very badly myself included.
Thank you for helping people I was proud to hand in the forms even though no promise to read them. and a financial charge if they do.
Thanks
Had two assessments with ATOS – the first gave me 15 points so I was placed in a working group. I was there for six months. I was told that the Jobcentre would contact me and I would have to see an advisor who would assist me in preparing to go back to work. I am still waiting for my appointment lol. I was called for another ATOS assessment and the doctor gave me 0 points, although I suffer from two degenerative conditions. How was I better? I appealed and was given £38.37 a week to live on. This happened in March and my tribunal was on Friday. I turned up for the hearing to be told that a page was missing from the 100 page report that ATOS had sent. It was the page that the Health Care Professional had to give his reasons for me being awarded 0 points – as the tribunal judge said, probably the most important page in the report. The tribunal staff phoned and asked for the page to be faxed immediately – three phone calls and thirty minutes later, they faxed the wrong page! By this time, the judge, although angry, was unable to continue as the next case was waiting and had no option but to adjourn my hearing. I have been told that the earliest this will now take place is January, but could be later. No come back on ATOS though – they can do what they want and cost the country a load of money for these tribunals, muck up paperwork, lie through their teeth etc but not be held responsible – and they actually get a bonus for every person they knock off the sick and say that they are fit for work!!
The judge should have ruled in your favour! Never mind a bloody adjounement! The Tribunals Service leaves much to be desired!!! Grrrr!
Hi, very depressed and i a bad dark place now. Esa has put me in wrag, i spend 22 hours a day in v bad pain on my bed, most times drugged up/ over dosed to cope, with tramadol max cymbalta gabapentin
They want me to get a job within 12 months or loose benifits. Worry and stress is bad, i have reserched helium hoods and other methods. I cant cope with worry nor function. I dont want it this way but cant face more pain than i have now, i cant sit nor stand for more than a few mins, i have spinal stenisis, have had a llamanectomy. I have painfull diabetic nuropethy artoritous of the spine , cant walk mote than a few steps. Have v low sphintal muscle tone. Yes i crap myself to if i cant get there in a few secconds, this is due to parrylises from spinal stenosis. Yes they still place me in wrag. O and my wife is also disabled, we are each others carers, yet they want to send me to attend work courses . You wonder now why i want to check out v soon, i am only alive now because i cant let my wife cope on het own, i hope i dont weaken as i have all i need to leave at a monents notice, look up detergent suicide, this is second favoured one , i have hydrocloric acid and bonzi sulpher stashed away in a safe place for use if and when , helium hood is no 1 method, this is used by dignitas. I love life and have a great family and grandkids but cant do with faused forture. Thanks john sorry for being so black, but no point in not telling it as it is here
John,
I am very sorry to hear the situation you are in. I am staggered that you have been put in the WRAG group. It is clear that this decision presents you with a “substantial risk” of your mental health worsening. Please let your GP know whats going on and ask that he/ she complete the regulation 35 appeal form that is attached above. I have a number of patients who have had the decision regarding WRAG/support overturned once this letter is submitted. Don’t give up hope!
kindest regards
Stephen
Dr Stephen M Carty
Medical Advisor Black Triangle Campaign
Hi, I am very fortunate in having a very supportive GP who is happy to do a report to accompany my ESA50. Is this a good time to ask her to cite regulations 29 & 35, or is it better to hold off on them until if an appeal is needed?
Also, would it be better to get her to fill out an ESA 113, which I can download from the internet for her, or just do a usual report/letter.
Despite being very lucky with my GP I have been in a complete panic since the brown envelope landed on my doormat on Monday to help me celebrate international day of disabled people. And the letter was just to say they were starting the migration process.
I know I am not fit to work (If I was I’d still be in work and wouldn’t have been medically retired by the NHS’s occupational health department) and I know my gp is of the same opinion…….but equally I am well aware that how I actually am has little bearing on ATOS/DWP decision making.
Hello All
Firstly I am so sorry you are all suffering and wish you all the very best, please don’t give up on your birthright of a happy life, which you deserve just as much as anyone else. Don’t let this government grind you down. Fight back by staying as strong as possible and uniting with others. We greatly outnumber these nasty callous tyrants and don’t ever forget that they are public servants, paid from public money to serve and protect the public. If they are not doing their job properly they need to be held responsible and sacked.
I am going to my Appeal Tribunal today armed with lots of information from Atos Miracles (very good source on facebook) and this site too (many thanks to Dr Carty and John Pring for sharing this information).
What amazes me though is that no one ever seems to mention the fact that there aren’t any jobs to be had! not for the healthy people never mind the sick and disabled people. This callous selfish government together with the greedy bankers have forced us into this recession and caused massive unemployment, yet they are now bullying the weakest members of society, the sick and vulnerable, to do the impossible and find work. How on earth can people find work when there aren’t any jobs!? 2.6 million unemployed! This government has a lot to answer for, it seems they are simply wanting people dead and out of the way. The sooner they are forced out of power the better. We all have a voice people so don’t be afraid to use it.
They’re scapegoating us because they think we can’t fight back. The truth will out and the Devil will be shamed. So glad you are making good use of our Reg 29 &35 Campaign materials. Let us know how you get on. Love & solidarity, always! Be strong! John McArdle, Black Triangle Campaign X
Hello from Paul.
I have managed to print out the letter To Whome it may concern. I am the Patients Medical practitioner and the Custodian. and Work Capability Assessment (W.CA) decision – Draft appeal letter Dear Doctor.
But cant find a live link to print out all the other stuff. My own letter to send to apeal with the lists of my condition etc. and the rest with all the Legislation and guidences and reason’s.
Be good to show doctor everything.
I never got a chance of a medical and have been put in WRAG Which is being appealed so need clause 35 with full explanation what it means
Please live links for every document everywhere possible.
Im seeing my G.P. On friday so need to show her it all. so she can help others in to the future.
If im forced to attend a work focussed meeting similer due to wrag procedures I will be in extreme risk of suicide” this is not game it’s litrlly deadly serious. it’s well documented why im at risk in a report published by a National Charity where I shared my adverse experiences at a Job Centre (I had charged out in great distress heading for the Tyne Bridge) which is close to the main Job Cebtre I cant ever go back or to similer situation due to 100 percent extreme flashback leading to sertain death.
This is just part of my reasons for not being able to ever work regardless of group im in regardless of benefit’s awarded or not.
If your seriously ill your seriously ill and if put in harms way you obviously will suffer the consequences. and so might others if this Guy continues to be abused.neglected or put in instand extreme danger
Post Traumatic Stress Disorder is an extremely serious and dangerous illness it does not take much to put pul in fight or flight mode.
My Flight usually means the quickest way to a Bridge to far.
Sinserly
Paul.
why respond to atos, lambs to the slaughter you go your sanctioned, atos need taking to court and there tac tics or a public inquiry about there ways, im scared to go, to an injust assessment at atos, alan
I’m a schizophrenic who’s been put in the WRAG and I’m appealing to be put in the support group. Thanks for posting this info. I showed my doctor the form about regulation 35, but she preferred to write her own letter based on yr info. Will let you know how I get on
Is this form to be used after you have been assessed at an appeal or to help you not have any assessment?
If I remember correctly twas a long time ago!. When I was 16 I entered a contract and signed a document with the government to pay national Insurance for the time when, if I was too sick to work they would look after me, are they therefore not in breech of this contract? anyone know the legality’s???? from a very poorly Dee who cant go out anywhere with out a toilet roll around my neck lol… not got a lot left going for me, but still have a tiny bit of a sense of humour!
can u please email me those letters please so that i can print them out just in case i ever need them thankyou so much
as i not that clued up on cut,paste thingys as my text ,to speech cant do it oh my email ykate1963@hotmail.com
Just received questionaire.absolutely terrified.
My wife failed her WCA and we appealed. We got the paperwork in and the examining ‘professional’ had falsified a number of aspects to my wifes claim.
We went to the first tier tribunal who point blank refused to discuss the falsification allegation. Refused to let me speak as my wifes advocate, and refused to read our prepared notes or let myself or my wife speak to the notes or quote from them!
There is an upper tier tribunal to appeal to, and we may do this. However we chose to start following a political route at this stage. We bombarded our MP’s office with complaints about the conduct of the case. As a Tory, he initially ignored them. We have also started bombarding his office with freedom of information requests and requests for his opinion on all manner of political matters. The result?
We have had a letter from his office, basically saying our postal and e-mail activity is breaking his offices ability to respond or do other work. Could we please give them a break? Also our MP is coming to our house tomorrow with his pathetic bag carrier to see how he can help advance our case.
The moral of this story is that if you really start to overwhelm your MP’s office, you will get attention, and you will get progress. You all know what to do…..
I trust that this case has now resolved, bearing in mind I’m writing nearly eight months later. However, the comments raise some more general issues, to which I wanted to respond.
The First-Tier Tribunal would have been constituted to decide the claimant’s entitlement to ESA. The Tribunal had no power in law to hear a complaint of alleged ‘falsification’ by the decision-maker, which is presumably why the Tribunal judge refused to allow the commenter to address the Tribunal on that matter.
It is important to remember that the aim at the First-Tier Tribunal is to attack the decision by using the available evidence to show that an alternative decision is more likely to be correct. Attacks on the decision-making process should be resisted, however much you might wish to vent your sense of hurt, dismay and injustice. The focus should remain on the question before the decision-maker, which will be determined by the law relating to that decision and the facts relevant to that law.
Matters of procedure (including complaints about the process followed) are of little importance unless the concerns are so grave as to imperil natural justice or procedural fair hearing rights in matter being decided. The likely outcome of establishing a breach of natural justice or procedural fair hearing rights to the necessary high standard is an order quashing the previous decision and the matter being referred to a new decision-maker to make the decision again. This means there is little point rehearsing these arguments before the First-Tier Tribunal, because the First-Tier Tribunal always reaches a fresh decision which replaces the original decision.
You need a fairly deep understanding of public law to make natural justice or procedural fairness arguments correctly. It’s far more subtle than “I didn’t get my say” or “this decision is wrong, so it’s unfair”. Since April, you cannot get Legal Aid for proceedings before the First-Tier Tribunal, which is another reason to stay away from these arguments at that stage.
Placing any significant emphasis on irrelevant points, however strongly felt, only detracts from the strength of relevant arguments.
Any appeal to the Upper Tribunal (or, subsequently, in the courts) must be based on one or more points of law relating to the First-Tier Tribunal proceedings. The Upper Tribunal is not a second attempt at winning your case before a Tribunal. It is at the Upper Tribunal stage that natural justice and procedural fairness arguments become more important, as they are possible routes to getting the First-Tier Tribunal’s findings quashed and the matter reheard by a fresh First-Tier Tribunal.
Any complaints of fraud should go to the police. Any other complaints should utilise the complaints procedures of the relevant body (DWP / Atos / professional governing body of any health or legal professional / Office of Judicial Complaints).
Politicians cannot exert direct influence on the decision in individual cases – were this not so, it would breach the independence of the judiciary (including Tribunal panels) and quasi-judicial decision-makers (DWP / Atos) required by separation of powers and, ultimately, the rule of law. All a politician can do is attempt to ensure the decision-making process happens correctly, and call to account those responsible for any failures.
If you are struggling to get a benefits application or a complaint dealt with correctly, it can be useful to involve your MP. Nevertheless, it remains that neither questions of whether the law should be changed nor consideration of political direction are relevant to a decision on an individual’s benefit entitlement.
Thank you for these letters, I can only show they to my gp but at least I’ll have tried.
I like many, many other have a GP that has refused to sign any supporting evidence in my favour but I have also been told by my mental health team they won’t either so I have absoultly no way of getting evidence from a medical professional to back me up. They both agree I need the help and deserve it but won’t sign anything or help me. I really don’t know what burying their heads in the sand will do apart from kill their patients, do no harm indeed!
Can anyone tell me how appeal hearings are interpreting the differing meanings of Regulations 29 and 35. My partner won her case at appeal last year being awarded ESA on 29 but not awarded 35 but the basis of that decision was not explained at the time or subsequently. As such she was placed in the WRAG group and we now have an appeal due to be heard in April as regards Regulation 35 and the Support group. On the face of it there seems to be limited difference between the ability to do work or work related activity – not that anything has been offered or suggested re “work related activity” in this regard. Rather it appears that there is reliance on the 12 month rule for WRAG on contributory ESA “running down the clock” so that whilst these people are agreed as not being fit for work – and so could not claim JSA – they are also not entitled to any benefit. DWP have been directed by the appeal to explain the basis of the differentiation prior to the hearing and I imagine they will say something along the lines that someone can be fit enough to do work related activity but not work itself.The assumption also seems to be that the condition of anyone in WRAG will- or should- automatically improve to the point that they will be capable of working .Has anyone been through an appeal where 29 for WRAG has already been granted but not 35 and how have the arguments been put and supported?
Peter did you get an answer to this, I was placed in WRAG under regulations 29 with no idea at time that I was on a time limited benefit afterwhich time I would have no money because my husband earns over £150 per week, I filled out GL24 stating that I was I wrong group, had I known I would have appealed, they said they believe WRAG is correct so I stay there and get no benefits. I sought some advice and have been told that if you won under these circumstances, your appeal will fail, you have 13 months to appeal a tier 2 appeal decision, and it’s taken so long to send me my papers back, I have now missed this, also, because I have not earned anything I am not entitled to JSA either as I only had a certain time to get that too and that ship has sailed, but they said I would only have got it for six months anyway its laughable, I don’t know what to do either and have been told my appeal will be throw out.
Patricia – thanks- I was unaware of the time limit but as we had appealed within 12 months as such there has been no suggestion of being “out of time”- and the appeal is due to be heard next month.Strangely enough though the original appeal was decided in our favour on the basis of Regulation 29 applying the Decision Maker has now indicated they – ie the department – had not allowed it on those grounds though equally we do not know on what grounds they did accept it – all very confusing ? We have asked for further clarification prior to the appeal though as matters stand we are still unclear as to the interpretation and differentiation in practice of 29 and 35 and” harm” if not found capable of work or work related activity by either the DWP or the Appeal.
Hi Patricia
The same thing has just happened to me. I was placed in the WRAG group and didn’t know it was only for 1 year. I’ve had no work related interviews in that time either, in fact no contact except to warn me that if I didn’t attend interviews I would suffer sanctions.
I was told on 4 March that my ESA would stop the NEXT day!
I have now downloaded the GP letters and I am about to write back to ask for a supersession of the decision. Like you I was told to apply for JSA but for 6 months only. But my GP has told them I will never work again.
My situation has been complicated by the death of my mum on 10 March, so I know I am late in writing to them. The letter I got on 4/3/13 said I had to write by 6/3/13.
I was going to give up. I have upped my medication in the hope that I could start going out alone and maybe get a job. All this has done is make me a zombie.
So I’m going to give this one more try. I thought that in March 2012, after winning my appeal, that this ordeal was over. But it looks like they mean to humiliate me more.
The letter from your GP invoking Regs 29 and 35 needs to be sent in with the ESA Assessment Form. Follow up with a Formal Complaint letter to Jobcenter Plus/DWP from your MP if possible. If you send the MP letter with the Form Atos will fast track you!
It worked for my girlfriend, who was excused the medical and given 18 months before reassessment, and told to include another GP letter invoking regs 29 and 35 with the Form next time it’s sent out. The worry is, that the Gov’t may do away with these regs!
I had my assessment aborted nurse not qualified enough to deal with my complex conditions complained to ATOS, got my M.P involved now ATOS wont communicate with me directly they wont reply to letters, e mails or phone calls. I have written to independent tribunal no response anyone tell me where to go now this has been going on since Oct.12
It’s very good that some people may be finding remedy by using these regulations BUT … ultimately, if individual ATOS/DWP assesors cause provable harm, injury or loss (that can include harm from psychological distress) then … as long as nobody brings civil lawsuits against these people as a consequence of their inept, unqualified decisions … they will continue to issue these harmful decisions for as long as it is profitable for them to do so.
That’s the bottom line. If only say 1 in a 1,000 of their victims brings and wins a lawsuit and they have to pay out say £50,000 … if they still made £50,000,000 then they’re not going to worry about the odd case that they lose.
They haven’t attacked me and my lumbar stenosis yet, but when they do, we’re going to find out just how effective the law course I purchased from jurisdictionary actually is. If it works as expected then I’ll seriously have to think about trying to help few of their other victims on a no-win-no-fee type basis (which will go some way towards countering the outrageous removal of legal-aid by the current fascist corporate government).
Good luck all. Keep your chin up and look into bringing as many lawsuits against these pigs as possible to make it financially unviable.
ttfn.
I eventually got my appeal hearing at the local county court. My lass went with me and we were in front of a judge and a doctor for 1 hr and 20 mins. It was such a grilling I broke down in tears nd the judge said we would leave this now and they would write with their decision. I got turned down to go in support group and also to receive any esa at all. I am now to ill to work and not ill enough to get any money to live. Please can someone advise me what to do next. Nobody seems to care or be bothered to help me and we are desperate for some help just to live.
Tuesday
Ok, I can’t keep my gob shut any longer. I’m sick to death of seeing posts on Facebook about benefit scroungers. Do you know the figures? Because if you did you might see it in another light.
Did you know that only 3% of the benefits budge…See more
https://www.facebook.com/photo.php?fbid=10201068815189560&set=a.2742166520370.155035.1443670886&type=1&theater
for the pie chart go to this link and you will be shocked how little fraud there is just another TABLOID BACKED MYTH
I took the advice as detailed in the above article, sent the appropriate letters etc to my GP, and having waited THREE WEEKS for a response, was told that she had had to seek advice from the Medical Council, who had told her that she was NOT to do anything further on my behalf, but to wait for a further request for information from the DWP!! The conversation I had with her left me feeling that EVERYONE was against me, and that I might as well KILL myself. However, with the support of a loving husband and family, I finally got to my Tribunal, and my appeal was UPHELD!!
I see the information regarding the two regulations have been amended during April 2013.
My GP used the letters and I sent what he produced as part of my appeal which is still waiting to be heard.
Do the amendments mean that the information I sent my GP is no longer applicable? Will the amendments mean I’ll have a lesser chance winning an appeal?
No – The legal principle stands. Don’t worry.
This needs to be amended as the regulations have changed to include description that the person claiming the appeal couldn’t use adaptations or devices to help them in work. I cant remember the exact details as i read it a while back and well my short term memory is a mess. The adapted regulations have a new number (not 29 and 35) and i know that sending the wrong info could be used against any claim..they would find any excuse.
29&35 still apply – please see link to main post : https://blacktrianglecampaign.org/2012/11/16/important-how-to-gain-exemption-from-dwpatos-fit-for-work-wrag-decisions-by-applying-esa-regulations-29-and-35-see-note-for-25-and-31/
Important Update 22nd May 2013
Legal correction and clarification
There are two sets of ESA regulations.
1. Exceptional circumstances 25 and 31.
These regulations are only in force under Universal Credit Income Related ESA claims (2013 No. 379):
Citation, commencement and application
1.—
(1) These Regulations may be cited as the Employment and Support Allowance Regulations 2013.
(2) They come into force on 29th April 2013.
(3) They apply in relation to a particular case on any day on which section 33(1)(b) of the Welfare Reform Act 2012(1) (abolition of income-related employment and support allowance) is in force and applies in relation to that case.
http://www.legislation.gov.uk/uksi/2013/379/introduction/made?view=plain
Here is the relevant clause from the Welfare Reform Act 33 Abolition of benefits:
(1) The following benefits are abolished—
(a) income-based jobseeker’s allowance under the Jobseekers Act 1995;
(b) income-related employment and support allowance under Part 1 of the Welfare Reform Act 2007
http://www.legislation.gov.uk/ukpga/2012/5/section/33/enacted
For Contributions Related ESA the old regulations 29 and 35 will remain in force indefinitely.
The 2008 act has now been amended several times, but the exceptional circumstances regulations are still 29 and 35.
http://www.legislation.gov.uk/uksi/2008/794/contents/made
List of amendments:
http://www.legislation.gov.uk/title/employment%20and%20support%20allowance%20regulations
Income Related ESA will move under the UC umbrella as Universal Credit is rolled out, and thus will when that happens, case by case, come under the 2013 no. 379 regulations.
Therefore please now revert to quoting Regulations 29 (in place of 25) and 35 (in place of 31).
The legal principle (the law as quoted in the regulations) remain identical so you should not be concerned if you have submitted the documents signed by your GP using the numbering 25 and 31. The Tribunal will apply the law irrespective of this error.
We apologise for any confusion or inconvenience this may have caused.
We have amended the numbering accordingly.
~ Black Triangle Campaign
Hi, yes i read that about 10 minutes after i posted. I do apologise. Of course now i’m even more confused, having cognitive issues and brain fog all this legal jargon is doing my head in. I’m appealing the decision ive been given and looks like i will have to use the CAB again even though last time i mentioned these two clauses they advised me against trying for them! But from what i read here, they REALLY apply to me.
this is beggars belief, if there is a way of helping certain people in certain situations, why would C.A.B. try and steer people away from regs 29 and 35…..
it makes me wonder what sort of relationship atos/dwp has with them.
its getting to a point where you don’t know who you can trust
hope everything works out for you Kristen
The ESA form [that makes 3 ESA Forms now] is a default form. The updated version [like the other 2] is a default `claim` form & a Bogus Data Protection Office at the DWP misusing & in breach of the Data Protection Act 1998.
Reason: The DWP want to cover their backs at appeals & not lose so many appeals. Another fiddle.
My son aged 28 was diagnosed with Aspergers Syndrome when he was 9. Yes it took that long! He suffered unimaginable torture from his peers and teachers in school and complete misunderstanding from myself and his mum until we discovered the truth. Even then his torment did not abate as he endured daily bullying at secondary school. It was only after my vehement protests that some (Not all) teachers began to give him special attention. Unfortunately this provoked even more chastisement and downright nasty periods of bullying. I had to interpret his depression and melancholy for myself because he just would not tell me what was going on.
When I finally discovered that he was being singled out for violent and unrelenting harassment I was livid and once again approached the school. This time they were more conciliatory and a special class was set up for kids with similar problems. Only then was it discovered how many children had problems such as Aspergers. Within just a few weeks 12 children were discovered to suffer from. When my son left at 16 a whole class was in operation.
My son was statemented and we found him a place at college for teenagers with problems such as his and with varying degrees of mental issues.
The college operated just as as school does with terms and holidays etc while giving the pupils various tasks to enable and help them cope with normal life.
The college was 33 miles away and I visited at every opportunity and gave my son any support he required. Unfortunately sometimes even this was not enough. Quite often I would get a desperate call from the college to say that my son had disappeared and could I inform them if he turned up, as he invariably did, having walked the entire way.
Once though I had to pick him up from Bromsgrove Police station because they had picked him on the M5 motorway walking the hard shoulder against the traffic. They could not comprehend that admonishing him would have little effect because of his condition.
Walking home the whole 33 miles became a regular occurrence as he tried to get home for the comfort and understanding home could bring. One time I was desperately worried because I received the dread call from the college at around 9pm one evening. He had taken issue with someone and rather than argue had simply walked out. Unfortunately it was during a violent thunderstorm and he taken no coat.
I drove the full 33 miles in the dark and driving rain to try and find him, to no avail.
When we got home I sent my wife to bed and stayed close to the telephone until 5 in the morning when my dog growled. I went to the front door which was virtually ripped from my hands by the driving wind to find my son standing absolutely saturated.
`Hello Dad’ he said trying gauge my reaction. I pulled him and got his clothes off. I fetched his pyjamas and sat him in from of the fire and made him a hot drink and sandwich. `Thanks Dad he said as he went off to bed. Then I cried!
My son is as helpless today as he was then. He is 28 and I am now 72 suffering with Epilepsy, Osteo-Arthritis. and having had two heart attacks. His mum suffers with lifelong Diabetes for which she has three injections a day.
My biggest fear is not my own death but what my son will do when I am gone? Doctors only discovered his Aspergers Syndrome when he was 7 and realized that there is no cure, and that he would require assistance throughout his life. Now politicians have decided that they will cast their net over the disabled and drag back the benefits they have previously given.
When I wonder will these hard up politicians begin to ask for their money back?
Believe me I am frightened not for me but for my son and the thousands of people like him caught up in what really is a witch hunt. It really bears a great resemblance to an Inquisition.
Another problem is that my sons GP is just another doctor and has little experience with mentally ill people. Now even though he was statemented at the age of 16 and I am classed as his carer, officialdom and jobsworthys insist that my son give them permission in writing for me to approach them on his behalf. This makes the task harder because of the time element. Grrr!
I went to my GP and showed her the forms quoting regs 29 and 35. She decided against filling in the form, but wrote her own version saying it would be detrimental to my health to be under threat of sanction as ill health would prevent me from attending work focussed interviews. Just under 11 weeks later, I got a letter to say the decision had been looked at again and revised in my favour. I am now in the support group. Was so worried I was going to end up in hospital for a while but my health has been more stable recently. Thanks so much for all your help everyone
Thank goodness for that! X
I cannot face going to my assessment. I have bipolar depression..cant face it.
i have to go @ 10 am today…..can you advise what to do.
I’ physically sick and been up all night.
Help….
Kenneth Bonnar ex RGN
call 07757130289
i had to go for an assessment on 29th of last month where you have to sit infront of the so-called medical person, who does not know you from adam. i have a low blood clotting disorder ie: haemophilia 5%.and a degenerative spine disorder along with anxiety & stress. i recieved my decision a few days ago and guess what? no points at all were awarded. this has left me feeling crap. There has got to be something serious they are covering up. so i have been to the C.A.B & am going to my MP & the haemophilia society. keep you posted.
Firstly hello to all who are going through an ordeal after the post atos examination,
I like many others who are sick and disabled and have been for a long time are left feeling guilty that we may be lazy ( according to atos,dwp and the general practitioners).
The Tory Moto is “not what you can’t do but what you can do”. Of course we have just realised for the first time in human history the folly of our ignorance. What my motto is “don’t you think if we could do something we would have long ago”.
But my strongest protest is with GP’s : like my own doctor who won’t hear reasonable argument and considers a plead as a form of begging with a cup in your hand.
However I’m sure justice will be done because although the Tories and GP’s are in power and rule the helpless and weak they will never see .
R hello to all who are going through an ordeal after the post atos examination,
I like many others who are sick and disabled and have been for a long time are left feeling guilty that we may be lazy ( according to atos,dwp and the general practitioners).
The Tory Moto is “not what you can’t do but what you can do”. Of course we have just realised for the first time in human history the folly of our ignorance. What my motto is “don’t you think if we could do something we would have long ago”.
But my strongest protest is with GP’s : like my own doctor who won’t hear reasonable argument and considers a plead as a form of begging with a cup in your hand.
However I’m sure justice will be done because although the Tories and GP’s are in power and rule the helpless and weak they will never see .
will keep this short. been thru atos once (11 years ago). they lied then,(3 pts.;trib 17 pts). 5 years back a note saying i wanted to bring my cpn got them to leave me be.
got my esa50 y’day. thought of atos meeting pushing me into darker and darker areas.
have heard if i get gp or cpn to write saying a face to face would be extr. dertimental to MH they may not push for a meeting. (true ??).
is this same as letter re clauses 25 31 29 35?
sorry i’m really confused.
yrs stewart.
I tried to download your letters to GP & Atos about getting on the Support Group, but my computer can’t download them! I could easily copy them out myself, but I wonder if anyone else is having the same problem with downloading?
In [13]-[22] (paragraphs 13-22) of MN v Secretary of State for Work and Pensions [2013] UKUT 262 (AAC), the Upper Tribunal made some important observations about the procedure to be followed in making a Regulation 35(2) determination.
Briefly, the Upper Tribunal held that it is for the Secretary of State to explain the “range or type of work-related activity which [the claimant] was capable of performing and might be expected to undertake sufficiently to assess the risk to health of [the claimant] or others”. Though this assessment may be generic in nature, a generic assessment will not apply to everyone.
As an Upper Tribunal decision, this binds decision makers and the First-tier Tribunal when dealing with matters on the same facts, unless and until the decision is overruled by a future Upper Tribunal decision, the Court of Appeal or the Supreme Court, or is invalidated by a change in the law.
A claimant – and any supporting evidence – should explain what work-related activity (or, for Regulation 29, work) they could do without a risk to health of themselves or another – which may be none. It’s worth knowing that the most common form of work-related activity is an interview at the JobCentre.
The claimant and those providing supporting evidence should do their utmost to demonstrate that their submission is more likely to be right than any submission from the DWP that there’s no problem with work-related activity (or work). In the absence of any reasoned basis to prefer the claimant’s medical evidence, the decision maker or First-tier Tribunal is likely to believe the DWP’s medical evidence on the basis that the DWP doctor is specially trained to give information on benefits matters (cough, snort, splutter – but it is the argument used, so be prepared).
The Upper Tribunal case can be downloaded from here (click).
Thanks, David
I am and have been my sons `Appointee’ since he was given a place at a special needs college at the age of 16, where he attended for 3 years.
On his behalf I have completed a `questionaire’ from ATOS and fully expect him to have to attend the `fitness to work’ examination pretty soon.
Simon, now 28, was diagnosed with Aspergers at the age of 12 and still lives with us. I do not believe he has, or ever will have, the independence to go it alone and will always have to depend on us for as long as we live. In my case, after two very near tries at `opting out’ that may not be too long.
Outwardly Simon is as normal as you or I but, you would have to live with him, or know him pretty well (He does not make friends easily) to realize he is not of this earth.
I would not like to be driven him, or rely on him in a situation.
He is not safe on his own and is completely unimaginative unless whatever he is doing suits him, otherwise he will not last 5 minutes.
Quite frankly he is danger to himself and anyone he `works’ with, and if he does not like the work or the people he is with he will not comply with any rule or regulation.
Even at college he often walked the entire way home if he was upset in any way, 34 miles in whatever weather. On two occasions against the traffic on the M5!!
On one occasion he twice walked into a moving ride on fairground quite oblivious to rising and falling arms twirling at breakneck speed. Both times he was struck a glancing blow rather than full force.
18 months ago he started saving up for a holiday to Cyprus to which I was delighted because he had not had a holiday since he was 8. Just he and I at last together. I would show him everything I as a regular visitor to the island had discovered.
I bought him all new clothes, and all the arrangements were made, the balance all paid up and then over the most mundane disagreement he refused to go.
Even though he had paid he simply refused all the families pleading to change his mind. Eventually his older brother had to pay £100 to change the booking into his name.
Simon simply cannot comprehend another persons point of view if he disagrees with it. Though he can get bad tempered, usually with me, he is not violent and he will simply walk as far away as he can from everything. And this applies to anything he does not see as beneficial or pointless to himself.
Driving lessons are nightmare. Twice he has taken exception to the attitude of the instructors and even after weeks of lessons, simply got out of the car and walked home, negating all the knowledge he has achieved.
Now he is saving again god help us.
Anyway that is brief outline of Simon my son…how do I present that to ATOS? Simon is not stupid he is very clever..BUT..only at the things HE wants to do. That is his illness! How can he find an employer that will allow him all the latitude to do as wants within those confines? Simon also needs constant motivation and observation otherwise he is a danger to himself and anyone he works with.
I am a 47 year old woman and have been ill since my mid twenties….I suffer numerous illnesses including kidney disorder, already lost one, thrombocytosis , raynards, extreme vertigo and dizzy spells , bouts of blindness, mental health , panic and axiety attack,incontinence and more…ive been told if I dont go to my assesment , it will affect my benefits..I explained to them why i cant come…I was spoken to like a child thats stupid..they wasnt actually listening to me when I was telling them they are in breach of their own regulations….my cpn is away on holiday and my gp is about as much use as a chocolate fireguard…..they are pushing me to a place where i dont want to go again …but I dont know how much more I can take , I live alone ….so the opportunity is available ….why are we been persecuted for been ill…I didnt ask for these ilnesses , I would rather be out earning…than have to sit in day in day out …cant even take my grandaughter to the park …its killing me!!….and these so called people are trying to push me to do it…..because they want all the wealth for themselves…. they would watch us die and take the change from our pockets….what kind of leaders are they…..hitler comes to mind but at least he ended it quick for them..we are getting tortured for their pleasure…thats not humanity…….I would rather die fighting than give into these greedy bastards
at the end of the day… a person…(yes person) who is control of the government of these islands…who has experienced having a disabled child…can persecute, yes (persecute) the disabled…is without morals, dignity, and breeding… this is the most low class government imaginable
I was placed in the WRAG in March this year despite the ATOS assessor saying I was not fit for work and would not improve over the next two years. I have Osteoarthritis in my hands, ankle and neck and Spondylolisthesis.
When I appealed my GP refused to give me a letter in support so I appealed on my own quoting regulation 35. Last week I got a letter from the DWP saying I had been placed in the support group.
I’m a man of 61 and I don’t mind admitting that the relief was so great that I cried.
I would say to anyone appealing that it’s possible to win even without your doctor’s help and to use the regulation, it can work.
Well done on winning, at 61 can you not get Pension Credit I am 61 I got it, out of ATOS cuthes then
Pension Credit is for those who are over State Pension age. The earliest a man can receive his State Pension is 65. Anyone can find out their own State Pension age at https://www.gov.uk/calculate-state-pension
I am dealing with my husbands transfer from Incapacity Benefit to ESA. Can anyone confirm that such transfers automatically get awarded ESA but it is just a question of whether you get put in the wrag or support group?
In addition to this is it advisable to ask his GP to cite regs 29 and 35 in her supporting letter to accompany the initial application or more sensible that she should weave the information into the actual letter in a less confrontational way.
There’s nothing automatic about the entitlement of those transferring from IB to ESA. A fresh decision will be made on limited capacity for work (i.e. whether a person gets ESA or not) as well as deciding if the transferee has limited capacity for work related activity (entitling them to be placed in the support group).
You should always assume that any renewal or transfer claim for benefits requires you to demonstrate entitlement, rather than entitlement being assumed.
Just to check..in reference to the Legal Notes for GPs.. When it states “The Black Triangle Campaign has consulted with Senior Counsel”
Who are the senior counsel it refers to?
I am about to go to my tribunal in the next couple of weeks and will be taking this as part evidence( i have a support letter from my GP, although it is not the template letter given here).
Knowing who this ‘Senior Counsel’ is would be helpful in explaining my situation at the tribunal.
Hi kristen i’m really not clear about the tribunals etc but i was awarded a years esa and then this will be reviewed for means tested.my husband works so i was told regardless of which category i was placed in because of his earnings i will be taken off esa and he will have to support me so i never appealed because either way i will be taken off benefits.Sorry if this sounds muddled up but bottom line seems to be they will get you off one way or another.
Jan – that does, indeed, sound muddled to the point of being wrong. The length of time you can stay on ESA without facing a means test depends entirely on which Group you are in.
There are two forms of ESA.
Contributions Based ESA, as its name suggests, requires you to have made NI contributions to qualify and is not means-tested. Essentially, this is the replacement for Incapacity Benefit (which had NI contributions amongst its qualifying criteria) and is where those transferring from Incapacity Benefit start off if they qualify for ESA.
Income Related ESA is means tested rather than being based on NI contributions. Essentially, this is the replacement for Income Support awarded on the grounds of incapacity for work.
Contributions Based ESA is limited to one year for those in the Work Related Activity Group. After a year, those in the WRA Group can move to Income Related ESA if they satisfy the means test, but as the means test is applied jointly with your spouse or partner, those who have a spouse or partner in work are unlikely to qualify. It is almost impossible to claim Contributions Based ESA again at a later date without returning to work and paying further NI contributions.
There is no time limit on Contributions Based ESA for those in the Support Group. This lack of time limit is the primary reason why people are desperate to be placed in the Support Group as the opportunity to stay on ESA for more than a year without a means test is far more important than the small extra weekly payment to those in the Support Group.
Thanks for that information David.I am on contribution based esa in the wrag group.I got this information from an advice centre local to where i live.Are you only allowed to appeal in the given time stated.?I did initially say i would like to appeal which would be my decision but was told it is cery difficult to get put into the support group.I have attended a trbunal a few year ago which left me traumatised until it was over.I was re-awarded my benefits.I feel let down by the whole system as does a lot of people and am now worrying myself sick about how we will manage financially from march as i know i am unemployable because of my illnesses.Do you know what my chances of re-appealing are and how i would go about this.Thanks.
What options you have now depends on what you have already done and when it took place.
Because you state that your ESA runs out in March, I assume that you have already let the usual one month time limit to mount a challenge (plus a further fourteen days if you request a written statement of reasons, as you always should if you intend to challenge a decision) run out.
If you haven’t challenged the most recent ESA decision at all, you can ask for the decision to be revised late, so long as you are within a year of the decision (which is likely, otherwise your ESA would already have run out). This involves writing to DWP, giving your reasons as to why the decision is wrong and, because you are late, you must also show “special circumstances” as to why you are making a late request. Unfortunately, your reason is ignorance of the law, which is expressly mentioned in the regulations as not a special circumstance. In practice, I would regard this route as closed, which is a shame, as revision can sometimes avoid the need to go to Tribunal.
There is also the ability to appeal late to the First-Tier Tribunal, but, again, you have to show a special circumstance and ignorance of the law is not a special circumstance.
If you have already appealed to the First-Tier Tribunal (which is what “re-appealing” suggests), you cannot appeal that decision again – the only option would be to appeal the First-Tier Tribunal’s decision to the Upper Tribunal on the basis that the First-Tier Tribunal erred in law. This has time limits and other procedural requirements. Going to the Upper Tribunal is not an easy route to take without legal help, and may well not be of any help to you. The Upper Tribunal has no power in law to make fresh decisions on the facts of the case (which is the reason behind most benefits challenges) and cannot admit fresh evidence. The Upper Tribunal is restricted to arguments about the proper meaning of the law or how the law was applied to the facts by the First Tier Tribunal.
However, this is not to say all is lost.
The first thing is to establish how you could establish membership of the Support Group – via Regulation 35 and/or by satisfying one or more of the Schedule 3 criteria. Jot down your arguments for Regulation 35 and for any of the Schedule 3 criteria that seem relevant.
If any of these arguments have arisen or strengthened significantly (for example, because your physical or mental health has deteriorated) since the decision or Tribunal that placed you in the WRA Group, this would be a change in circumstances. If there is one or more changes in circumstances that arose after the most recent decision or Tribunal, and you can get supporting evidence of the change and when it took place, you can write to DWP notifying the change(s) of circumstances and requesting supersession of your award. It would be better if any arguments did not refer directly to your upcoming loss of ESA in March – “ongoing stress” is much less confrontational than “you’re going to take all my income after March”.
If there is nothing that would amount to a change of circumstances, sadly I think there is little you can do. It seems harsh that you appear to have given up the right to challenge the decision based on incorrect information about the law. Yet, if ignorance of the law were grounds for challenge, it would amount to unlimited appeal rights for everyone, as anyone could claim they are ignorant of some relevant point of law. It would undermine legal certainty, and therefore the rule of law, if a decision never became final and no longer appealable.
The legal system works on the basis that you have the same opportunity as anyone else to discover your position – but when welfare rights advice services are stretched and not always well-informed, the benefits system is incredibly complex, and legal aid is no longer available for welfare rights matters other than well-founded appeals to the Upper Tribunal or the courts, claimants are often left floundering.
I should also add that whilst this is correct to the best of my ability and strength, you should attempt to seek whatever help you can to check this information before relying on it.
Thank you david for your update.at moment i am struggling to take things in and concentrate due to my mental health so please bare with me.My appeal time has lapsed but i am still within the year time scale.I will give it a try writing to Dwp and ask for a revised decision based on my health deteriorating due to stress of original decision.Will this be circumstances you mentioned about?Would it be advisible to send along a supporting letter from my doctor as he did this when i filled in original forms for decision i was given rather than the 29 and 35 reg forms.I sent away for copy of the report which was given by i think atos and it stated on that i would not be able to return to work for at least 2 year because of my mental and physical health.I have crippling menieres attacks due to the added stress an am seeing consultant 6 monthly appointments.Sorry if this is long winded but really dont know who to turn to.
David W- just read your various posts over the last day or so which are very useful and factual.
Our situation is that my partner received IB continuously from 2003 until ESA introduced. Initially declined ESA but put in Contributory WRAG group at successful appeal in May 2012,this being under the “exceptional circumstances” clause 29 but not 35. As such put in WRAG but not Support Group 12 month rule applied and benefit ceased November 2012 ie a year after the original decision in November 2011.
We lodged an appeal to be put in Support Group and that clause 35 applied ie “substantial risk” if carried out “work related activity” as opposed to just “work”. Also asked for clarification of how this difference was being interpreted in practice but no reply on this ever received. Have to say this sees to me a very fine dividing line and in practice if you have someone who may be able to undertake very limited “work related activity” not that we were offered any – but this may well be a long way away from being actually fit for work- the mental,personal and physical requirements for which are much more demanding. There seems to be an underlying assumption here that everyone in WRAG will somehow “improve” and inevitably progress from “work related activity” to actual “work” but the basis of that view is not explained
At First Tier tribunal appeal in April 2013 it was upheld that my partner should remain in WRAG but not be put in Support group. We appealed for leave to appeal to the Upper Tribunal – realised this would be difficult in that had to show error of law / procedure – we felt there were such procedural errors in that a lot of key documents we had asked for prior to the hearing had not been provided by the DWP and that despite an order for directions to them to provide these were still not supplied and as such neither we nor the First Tier Tribunal had access to review central documents on which the original decision had apparently been based. A number of these issues were raised in detail but the First Tier Tribunal refused leave to appeal so we approached the Upper Tribunal for either leave to appeal or to have the original decision “set aside” on procedural grounds. Upper Tribunal have now refused leave to appeal to them though we intend to pursue the issue of possible “set aside”.
In any event even if successful with “set aside” this of course simply takes us back to arguing the case again and starting afresh
Leaving aside the particular issues of our own case and on a more general basis what strikes me from all this re the 12 month rule on Contributory WRAG ESA seems to be as follows:
1) Once the 12 months has elapsed and you are deemed to be still in WRAG – but cannot claim income related ESA due to partner working or savings -then DWP are saying they accept you cannot “work” – but can do “work related activity”
2) You can only ever make one 12 month claim for Contributory ESA – unless you return to work and build up further NI contributions
3)You cannot claim JSA as you are not fit for work.
4)It appears to be assumed that if you are in WRAG that – somehow -not clear how,when or why- the condition that is preventing you from working is likely to improve in a given time frame rendering you able to work / register for JSA. However there has to be no evidence produced to support that prognosis, time frame or outcome.
5) As such a common scenario of many long term sick people on Contributory WRAG is that their medical condition/ ability to work will be as same- or possibly even somewhat worse than previously when on Incapacity Benefit – which was not time limited- but they are unable to claim anything either now or any time in the future.
6)In effect in this situation in economic terms they become “non people” trapped in a Catch 22-who DWP agree are unable to work / claim JSA or an other benefit.They then become reliant on their partners earnings or savings – potentially permanently if their condition remains the same.
7)The argument is that the 12 month limit is to bring this in line with Contributory JSA which is also time limited. The difference however to me would appear to be that if someone can claim JSA they at least realistically have the chance of getting paid work- ie they are both available and fit for work- whereas those in Contributory WRAG ESA are not
Wonder if you- or anyone else- agree my analysis of this situation and that effectively all those in Contributory WRAG either will already be now – or, if not, will be shortly as the 12 month clock ticks down – in this position- ie total loss of all benefit and no prospects of a future claim in that category.
In other words -we(DWP) agree you are sick and as such can’t work and don’t know when- or if- you will ever be able to but you are not entitled to any benefit either now or in the future.
If you find this comment hard going, it is the last two paragraphs that are most important.
The identity of the barrister in question is largely immaterial. His or her opinion is precisely that – one opinion. His or her seniority merely gives an indication of how likely he/she is to be correct – you cannot say “I win because my legal opinion has a more senior author than yours”!
It is for the courts and the tribunals to interpret the law. Decisions of the higher courts and Upper Tribunal create binding precedent – though determining which part(s) of a court decision is binding and on whom is not always straightforward, even with legal training.
I presume Kristen’s intention was to rely on “more likely than not there will be any harm” as an interpretation of “substantial risk” or, in one case “serious risk”.
“More likely than not” is simply a statement of the standard of proof required in all civil matters.
There are two standards of proof in UK law. “Beyond reasonable doubt” is only used in criminal matters, attempting to ensure that criminal conviction does not occur if there is any reasonable doubt. All other matters are decided to the civil standard of proof: “balance of probabilities” (sometimes written as “more likely than not”).
Whether harm is substantial or serious is what is called a question of fact – it is determined by applying the law to the facts given. “Substantial” or “substantial risk” is not defined in the ESA Regulations, so it takes its usual meaning in everyday language. The Oxford English Dictionary suggests several possible approaches, including “firmly and solidly established”. One possible approach taken by decision-makers and Tribunals is “more than merely trivial” – I can think of examples of this approach being established in other areas of law, but I am not aware of legal authority established in this interpretation here.
I would agree with the barrister’s view that “substantial” or “serious” binds to the word “risk”, not to any underlying disease or medical condition giving rise to that risk.
All any of this argument does is establish the test to be applied under Regulations 29 and 35. What is more important is how the test is applied in practice by a Tribunal, which is where my 28 July 2013 post about an Upper Tribunal decision is important. (I don’t believe that decision has been overruled – it would be a surprise if it was overruled so quickly and I cannot find any overruling decision).
MN v Secretary of State for Work and Pensions [2013] UKUT 262 (AAC) says, in essence, that it is for the DWP to explain to a Tribunal what work-related activity or work the claimant can do without substantial / serious risk to themselves or others whenever the claimant has invoked Regulations 29 or 35. It is far more likely that any dispute will be over the extent of the claimant’s abilities without causing risk, than whether the risk arising from the claimant’s alleged abilities is substantial or not.
The claimant can argue against the DWP’s beliefs by showing their own, more restricted, view of their abilities without causing risk to themselves or others is more likely to be right. This is where supporting medical evidence is useful.
hi kristen,
good question..
i go to tribunal in 4 weeks.. and would be interested too
“95 Year Old WWII Vet Refuses to go to Hospital for Urinary Tract Infection, so Police Shoot and Kill Him”
http://healthimpactnews.com/2013/95-year-old-wwii-vet-refuses-to-go-to-hospital-for-urinary-tract-infection-so-police-shoot-and-kill-him/
This is certainly a sad death, though it’s worth pointing out it happened in the United States, whilst this site is about the United Kingdom’s benefits system.
I’m a 48 yr-old with severe mental health problems attributable to my last 13 years of employment, plus other health issues. I was retired in 2007 and awarded permanent injuries benefit as well as my pension – on appeal – as Atos were dealing with that, too. Atos were the ones who concluded I have permanent disability, but I’ve received the ESA50, because I’ve been claiming incapacity and DLA (higher rate for care; lower rate for mobility). I wonder whether they can contradict their own decision?
To be on the safe side, I’m asking for my GP’s help as well as other consultants, noting the info about regs 29 and 35. Having to attend face-to-face interviews would be extremely detrimental to my health. I notice that it’s been suggested that M.P. involvement may help avoid an adverse decision. In what way can he/ she help or assist an individual case? What should I be requesting of them? Is there a template for use with M.P.s? I’ve seen the ones for GPs.
Thank you very much for your help with this nightmare.
Any previous decision made by Atos relating to state benefits or occupational pensions are separate in law from, and therefore irrelevant to, an ESA decision.
The Secretary of State (i.e. the DWP) has determined that a new decision is required on your entitlement to ESA, which is to be made by applying the criteria laid down by law to the evidence available. Historic decisions do not affect this process, as the decision-making process starts from the beginning each time. Any contradiction with previous decisions is legally irrelevant. (I have, in the past, submitted consecutive DLA claims that were essentially identical. Both were decided solely on the evidence supplied, but with very different initial outcomes).
The involvement of an MP may focus minds to do the job correctly, as it places the DWP and Atos on notice that they are being watched in relation to your case and that awkward questions may be asked about any failures in the service you receive. The involvement of an MP or a member of MP’s staff does not change the task before the DWP and Atos: to apply the relevant law to the facts, fairly and impartially. (I know there are grave doubts that this happens in many cases, but that is the task).
The involvement of an MP is most useful when something has already gone wrong – for example, a decision is delayed unreasonably or an incorrect decision has been reached. There is relatively little an MP can do to make your claim for you, though there may be a limited amount of help available from your MP’s staff if you need help making your claim and cannot access other sources of help.
One previous poster suggested that bombarding their MP to the point of being asked to desist gained their MP’s attention, but every MP has responsibilities towards their constituents and a single request for their help should suffice. I don’t see any follow-up comment from that poster, but will make some relevant observations myself shortly.
I wish you well in establishing your case for exemption. The benefits system is difficult for everyone, but especially for those who find it impinging on their mental health and well-being.
Whilst reading some recent decisions of the Upper Tribunal on ESA, I noticed a decision ruling a First-tier Tribunal had erred in law by refusing to obtain specialist evidence on mobility that the claimant mentioned had been submitted as part of a recent successful DLA claim. The Upper Tribunal took the view that once the First-tier Tribunal’s attention had been drawn to evidence the claimant stated was relevant to his ESA appeal, the First-tier Tribunal was duty bound to obtain and consider that evidence rather than concluding it had enough evidence to reach a decision.
This does not invalidate my earlier comment that previous decisions are of no relevance, as no decision sets a precedent and each decision is made from scratch by applying the law to the facts.
However, it is worth being alert to all possible sources of evidence. If you can obtain a medical report relevant to the period in question from files relating to another benefit, or because a report was commissioned by an occupational pension scheme, then it is worth doing so. However, with a decision about an occupational pension taken six years ago, it would likely be necessary to obtain up-to-date medical evidence confirming there has been no change in the 2007 position. Though it is a little unlikely considering that the occupational pension continues to be paid, it might be that the file copy of the report has been destroyed.
Like Peter Farral above I applied regs 29 & 35 to myself in my appeals form and outlined my situation in detail in regards to the regulations and despite my doctor seeming to afraid to provide evidence and only providing only a sick note in which it showed my mental health condition had worsened, worsend considerably since being found fit for work which caused suicidal thoughts, genuine terror about being mentaly ill and homeless and srarving etc and believing my life was over because I know I would not be anle tp take care of myself or survive if that happened, they reconsidered their decision and found in my favour – limited capacity for work and limited capacity for work related activity. Appeal lapsed and reassessment in 12 monthes. And like Peter above I also cried when I got the letter this morning. Sheer relief, I might actually b3 able to sleep properly tonight first time in several monthes of worrying. I am still in disbelief. HUGE thankyou BLACK TRIANGLE CAMPEIGN and others sharing the info for making us people aware of our rights and helping us to fight for those rights. So to anyone going through this hell, if you genuinely believe regs 29, 35 etc apply to you, even if your doc is afraid to provide more evidence such as the BTC template letters, it is still worth appealing and fighting your case. Goodluck to all.
Hi to all,
Just had my appeal today ,like most i thought it was going to be another ordeal like ATOS , but surprisingly the tribunal was warm hearted & informal . To my disbelief the judge & DR said they do not speak for or represent government so that was a relief from the outset,anyway to get to the point they told me their function was to award points since I was appealing against the original decision.
So after being questioned about how my illness affected me they awarded me 18 points(original decision:0 points) so I’m on esa now on esa with an uncertain future ;I don’t know whether I’m supposed to be happy or not , these last 17 months have completely changed my personality , so the damage has already been done ; I’m not the same person anymore.
I just want to give this consolation to anyone about to attend an appeal that they are on your side.
Good luck to all.
As you say, Ebrahim, the First-Tier Tribunal panel are independent. The panel is headed by a Tribunal Judge, and sits in a judicial capacity, which requires them to be independent. Their task is to decide whether the DWP’s arguments or the claimant’s arguments are more likely to be true, and to apply the facts found to the relevant law in order to reach a decision.
Any apparent bias in favour of the DWP is likely explained by the DWP arguing that their medical information comes from an expert medical professional (i.e. an Atos employee who has had some training on occupational health matters relating to benefits) and should be preferred to the evidence introduced by the claimant. There’s nothing stopping you showing the DWP’s arguments are incorrect – as we know, sometimes their decisions are obviously wrong, whilst their medical professionals often have limited expertise in the conditions we live with.
Congratulations on winning at Tribunal. I hope that being released from this particular battle creates space for some healing, but I lament the unnecessary damage and distress you have been caused.
hi, i’m very happy for you.. yes you should be happy.. every victory counts..my tribunal is in a few days and i been waiting a long time too.. i am extremely nervous.. and dont sleep well at nights..i know how it can change you… i thought i was improving then atos made me much worse so its like snakes and ladders… totaly waste of space this government… totaly out of touch with real people…i’m taking support with me… dont know if you had any… and i have written reams in my support as well as medical evidence..v.nervousd as i write this.
hi, my husband has suffered depression and anxiety most of his life , I believe caused by head trauma after a road bus accident in his school years, he has an appointment for atos on 21/10/2013 ,I have asked for this appointment to be rescedualed already once before due to him needing to see his gp first , he currently claims income support and has done all the time he has suffered with his mental condition , since getting his appointment for atoms his condition has worsened , he is angry , low mood can’t concentrate feels his life will be over should they rule against him , feels his life won’t be living , feels suicidile and errupts with explosive outburst for no reason , shouts and gets abusive and violent for no seeming reason , he can be like this daily anyway but is worse since receiving his appointment, he has an appointment with his go 15th October ,Tuesday, any help suggestions , his go wrote on his behalf and he was relieved to not have to attend the last time some 5 years ago am hoping for a similar outcome this time, he did have to appeal atoms , under a different name in 1996 and won his appeal , am hoping for a good outcome as this is no joke he has attempted suicide in the past and would hate to see him placed back in the mental hospital due to. this crap system ,any advice please
some people here have ignored atos and got away with it… i dont know how…
certainly… try to postpone it… saying he too ill.. buy some time…if you go to atos, never go without support.. and demand it recorded… dont know if he has care coordinator?
someone above wrote to dwp quoting those regulations and it made all the difference… impress on them that his condition is going to decline if he goes there… quote regulations above… anything is worth a try… but put in writing…g.luck.
i just found this… which explains what happen if ignore atos…
http://atosvictimsgroup.co.uk/2013/10/03/the-nasty-party-strikes-again-by-sandra-bowes-rennox-2/
The link for AtosVictimsgroup – It seems ATOS have shut down the site – ATOS getting nervous again. Down 12 hours & counting.
amend , appointment with atos and gp
just a msg to thank you for all the valueable information clicking on to your link has provided me with,but im absolutly terrified to go to this medical,i,ve never ever in the past 10 years been asked to attend any medicals!,i cant believe some of the horror stories that iv read!i know they are true as no one could make them up!,please can you tell me what to expect when i go in there alone, as ive no one to attend with me,my condition does not have a specific name so ii will briefly try to tell you,over 10 years ago i went into hospital for 2 prolasped discs mended, (i was self employed cook prior to this)when i come around it was quickly noticed i couldnt do a wee or no2,after day 1 i had a catheter fitted then given bowel med to empty my bowels,over the years ive been tought to self cathiterise & nurses do bowel irrigation2days a wk,i also suffer chronic pain spasims due to the nerve dammage done while i was in the theartre,im on a high dosage of opiate meds,diazepam,2×7.5 zopliclone to help me sleep,amypitriptaline to relax my muscles,then there is my antideppressants duloxetine as i suffer bad deppresion,the slightest stress triggers my pain spasims which then have to be controlled at my local hosp,so you can immagine im really paranoid to go to this medical after all the horror stories ive heard,please write back to me as im getting really stressed out with just the worry about going to this medical,any advice is very welcome many thanks for reading this Carol .
Dunno if this is too late but please don’t go alone. If you are alone it says you can manage. If there really isn’t anyone who will help, go and see your GP say you can’t cope and what should you do? He might help, or suggest a voluntary service even. Else, CAB might suggest something. Attending alone sends the wrong message, don’t make my mistake. Please. You can’t afford to muck this up. I’m eleven months on appeal and counting. No end in sight. New rules mean while applying for permission to appeal mean you have no money. How long for? 4 – 6 Weeks? More? No-one knows. Can you honestly sign on in the meantime and say you can be a jobseeker? Probably not else why would you need incapacity? Only if they say you can appeal will they put you on the list and then you exist on just £71 a week.
My husband has been placed in the WRAG(letter dated 24th October) and it is causing both of us a lot of stress I just wanted to ask if while we are dealing with our local advice centre and we have a GL24 form to send in to the DWP which we will be filling in on Monday 11th November with the advisor should we also add the template letters concerning the REGS 29 and 35 I’m ready to print these letters but I was worried because our GP isn’t very helpful we have to make an appointment for next week to discuss my husbands health problems due to the appeals process I have already been in to see him without my husband and he wasn’t very helpful so to ask him to sign a letter would be a struggle I would be grateful for any advice
It’s tricky if you GP doesn’t want to get involved. I guess if you take the papers, discuss your medical issues say how husband is deteriorating and what can he do? Then when you are done and it feels right, ask about the letters. Would he support you? If he is sensible he will recognise how stress is playing a part in the problem and he will see 5-10 mins filling in a form as a good use of his time if it makes your husbands condition easier to manage. The GP’s had guidance sent to say not to get involved. (not their job) so it’s not a done deal. But I think they still have to work in the best interests of the patient. If GP won’t support, is there physio, carer’s, friends, the church who could say how the condition affects daily life and ability? Or like others you just say how the regs apply to your husband yourselves. It seems to be that you have to create a dossier on how the condition stops him from doing the things listed. That’s what I’m told to do. GP is still not keen to get involved. Obviously Sign wowpetition as well and tell your friends as we still need 21000 people.
You have a new member and a new fan, namely me, long story short my neighbour, who I intend to represent at her upcoming appeal, has serious health problems mostly MHP, but physical ones as well, I am going to use the Example letters you have published to contact her doctor, and use the other methods mentioned, I am both upset and saddened by the poor press coverage of this and the public brainwashing by the current Government, have only browsed through most of what was on the website but important to know that they clearly give priority to (their Own) Doctors or H.C.P who can miraculously make instant decisions on a persons physical and mental health problems in under an hour,(Amazing dont you think?) I have contacted the ECHR, but in all honesty as 90% of all cases fail due to not following the correct procedure, I am not holding my breath for a positive reply.any way thank you for all the info, and please keep me informed. all the best to everyone connected to this extremely worthwhile cause, am also a member of 38% degrees, who are also worth a look but your information on this is top drawer well done and thank you, Yours Sincerely Gerald Ward
Readning some of the comments on here is a very scary thing!!! I have suffered from anxiety/panic attacks and depression for years, meaning i always struggled holding down a job for more than a couple of months, didn’t understand why??? was diagnosed ( after ten years of asking and only recieving anti-depressants) with adult ADHD, which means really bad memory retension, easily confused, can’t prioritise tasks let alone finish them, never held a bank account for more than a year, and trying to budget is quite honestly a joke. i have been under sanction from DWP thanks to atos,(couldn’t give ATOS;) for the past 16 weeks, had 2 appeals now going to tribuneral and i’m terrified, just feel abandoned and alone without the ability to fight my corner. Seems doctors notes don’t mean anything, phsyciatrist note doesn’t mean anything, My health Doesn’t Mean ANYTHING!!! Had 2 phone calls from DWP where the caller just bullied and confused me and left me suicidal, which i am sure it’s what they want, they might get it if this goes wrong. the debt i’m now in is very scary, if the tribuneral doesn’t find in my favour it’s all over, no money( which i havent had in 16 wks) no home(rent not been paid since 8.10.13) NO LIFE. CON-DEM, BLOOD ON THEIR HANDS!!!!
I lost my tribunal, was advised by my advisor present at the tribunal that what would happen when we got inside the room would be independent of any assessment I had already had, yet the first five questions where straight out of the Atos hand book. The only question the judge asked was could I move a half full milk carton followed by the empty box. As for the doctor the questions she asked where, how did you get here, when you walked to the court after getting dropped of by car how long did it take, how far did I think the walk was, whichverdictwhat ATOS ask. Does anybody measure or time what they do, at one stage I nearly lost it with the doctor because I answered a certian question with, if I had no legs I still had to come to todays hearing paln or no pain.
I was diagnosed with osteoarthritis in both hips, had two replacements one side because first one failed, told at my last meating with the consultant that it could be a year or two and the other hip will need replacing but that will depend on how much I do things, the more I stress it the quicker it will wear out. I also have problems with my arms do to the fact I have been on crutches since 2004 and have had to use my arms compensate for lack of use of the legs.
it does not matter if you are under a consultant and have the family GP say you are unable to work, when the tribunal goes againt you even consultant and the family doctor diagnosis means nothing.
I was awarded 12pts they never even considered paragraph 29 on rick to health, they agreed with Atos I should not lift, bend or reach, would not beable to stand, sit or a combination of both in one place for more than an hour with out having to move away. The tribunal in agreeing with Atos also would mean they agree with the earlier statement, that having to find work would have no detrimental effect on the hips. To think a tribunal doctor agrees with this is criminal, osteoarthritis of load bearing joint is not going to be more damaged with adding more stress and movement to it.
As I said to my advisor as we left the room that was cut and dried before we went in straight out the Atos hand book, and when I asked and stood up to demonstrate my lack of arm movement and how far I could move the arm without pain I told my advisor the docter did not look….independent my backside, they had decided on the outcome before we went through the door,it late getting started nearly thier knocking off time we where in and out and by the time I had been to the little boys room only about ten feet from the court door we had thier verdict, all done and dusted in less than 30 minutes
HI There!
i have just received the dreaded ATOS letter to attend an assessment at an office!!
i at this moment are in a support group esa,as i have serious heart problems,suffer from internal bleeding (anemia) and have serious arthritis , and cannot walk or stand without serious pains and dizziness.
i have asked for a home visit as i do not leave my home anymore as i am in fear .but i am being refused this!!!!
my G.P died this year and the locum GP refuses to get involved!!!!!!!!!!
how do i get a home visit? why do i need to be re asses d?
i have had 2 serious heart attacks in the last 2 years and cannot face these people out of the safety of my home
They’re not all nurses, some are physiotherapists, occupational therapists etc.
I am disgusted beyond belief at the grossly misnamed welfare reforms, they are nothing but socio/ economic cleansing identical to wartime fascist regime if Hitlers Nazi Germany. George Smith twice failed and his cohorts are unmitigated liars and should be tried and imprisoned for crimes against the most vulnerable in society.making such pay for the degenerate criminality of the Tories bankster masters is an act of barbarism. This is the start of a construct of creating a supressed and powerless underclass as a sword of Damocles to control the drone middle classes by fear in order they will accept more and more restraint and capital wealth theft from them. All you who think this is nothing to do with you , wake up, the lesser among us are being sacrificed and their lives placed in peril. If we are to call ourselves civilised it is our beholden human duty and obligation to care for those less able and have humility and compassion for their suffering. Unify, support your fellow beings against this evil and bring down these sub-human life forms, destroy them or they will enslave and destroy us. Of you who are engineered into the divide and rule propaganda of demonisation of the vulnerable, think next time you look down upon those who are less able for what ever reason, only look down to offer a hand to raise them up and say there for the grace of god go I