News

In our last newsletter we asked for your accounts of appealing a decision to place you in the employment and support allowance (ESA) work-related activity group (WRAG) when you considered you should be in the support group. We had over 40 responses from people at various stages of an appeal, so many thanks to everyone who was willing to share their experiences. Some have been reassuring, some disappointing but all have been illuminating.

Why the support group?
There are lots of good reasons for challenging a decision that you should be in the WRAG rather than the support group. Many people are fired by an overwhelming sense of injustice that the DWP have decided that you should soon be able to return to work when you are certain that’​s never going to be a possibility, or you wouldn’​t have stopped working in the first place.

Then there’​s the fact that you receive more money in the support group and are not subject to work-focused interviews and threats to cut your benefits if you don’​t do as you are ordered.

And, of course, if you are on contribution-based ESA there is also the possibility that you may lose your ESA entirely after 12 months unless you are in the support group, if the proposals in the current welfare reform bill are enacted without amendment.

Losing the lot
But there’​s one very major worry for people who challenge a decision to place them in the WRAG: they might end up losing their whole ESA award.

It should be remembered that if a tribunal wished to look at this issue of whether you qualified for the WRAG they would need to warn you that they were going to do this and allow an adjournment if necessary, so that you could prepare a defence. However, if you ask for a decision to be looked at again the decision maker can also come to the conclusion that the original award was wrong and remove it altogether, although they would need grounds for doing so.

The good news is that absolutely no-one we heard from had lost their ESA, or even been threatened with losing it, as a result of challenging the decision to place them in the WRAG. That doesn’​t mean it can’​t happen, but it is clearly a rare occurrence.

Official misinform​ation
However, even if actual threats of loss of benefit aren’​t made, DWP workers are not averse to giving discouraging and highly misleading information to claimants. For example, we heard from several members who had been told by Jobcentre Plus staff that it was a waste of time appealing:

“​Every time we spoke to someone on the phone they told us it was only terminally ill people who got into the support group and that we didn’​t have a chance.”​

This assertion is so commonly made by the DWP that it’​s hard to know whether this is deliberate disinformation or just represents a complete lack of ESA training amongst frontline staff. Either way, we would urge members to make a formal complaint if anyone gives them such shockingly misleading advice.

If claimants do persist with their appeal, they may be given still more misleading information which seems clearly designed to reduce their chances of success. One member was asked if they wanted to add anything to their claim prior to lodging their appeal:

“​I said I would get consultants'​ letters and she said '​No, we don'​t need any of that'​. I know that that'​s quite wrong so I will get together all the information I need and be ready for them.”​

Conflicting advice
On the other hand, we also heard from members who were advised to appeal by Jobcentre Plus staff themselves, who seemed as scandalised as our members at the decision to place them in the WRAG.

Sometimes this happened during the course of a telephone call after notification of the decision. But it also seems not uncommon for personal advisers at Jobcentre Plus to urge claimants to appeal in the course of an initial work-focused interview:

“​The advisor there immediately called a halt to the interview, saying it was not appropriate for me, that I would not be asked to go for any more interviews till my review date next April and that I must appeal the DWP decision immediate​ly”​

Even after winning an appeal, advice from Jobcentre Plus can be conflicting, misleading and a threat to existing benefits. One member received a new ESA50 a week after winning their appeal to be put in the support group:

“​I checked if it had to be completed, some staff said throw it away, others said I would lose benefits if I ignored it, so to be on the safe side I sent it off. Subsequently I was called for a medical and promptly returned to WRAG.”​

Had our member followed the advice to throw it away they would have been likely to lose their ESA altogether.

Clearly, for individual claimants, getting such conflicting advice from staff at the same government agency just adds to the sense of being caught up in a completely chaotic and unjust process.

Moved to support group without a hearing
One very encouraging thing, however, was that a number of members had their status changed from WRAG to support group without ever having to appear before a tribunal.

One member who was moved from incapacity benefit to ESA WRAG without a medical got a letter of support from their GP and enclosed it with the GL24 appeal form. In just five days they received a letter saying that the decision would be looked at again:

“​Later on in that afternoon I received a phone call from job centre plus informing me that they had reviewed their decision and were now moving me from the working group and placing me into the support group.”​

Another member was also successful in getting moved from the WRAG to the support group by sending in a doctors letter along with their appeal form. At least, they are pretty sure they succeeded:

“​We never received a letter saying this explicitly but just got the standard '​your benefit has changed’​ -and on the back page it now says ‘​support group'​ –​ of course the money hasn'​t changed as his IB was higher than ESA is anyway.”​

Another member who was placed in the WRAG got their care co-ordinator to write challenging the decision and was placed in the support group without further action or evidence being needed.

We also heard from a member who was placed in the WRAG following a medical but did not challenge the decision. Six months later they completed an ESA50 and were kept in the WRAG, again without a medical. Our member lodged an appeal and four months later they were informed that they had been placed in the support group. Surprisingly, this decision was made even though they provided no additional evidence and were not called for a medical before the new decision was made.

Less surprising is that this entirely haphazard process leaves some claimants more than a little cynical about what is going on:

“​It seems to me that they place a lot of people into the work group even though they know they should really be in the support group and sit back and wait and see if they appeal the decision, if they do they will [move them].”​

Never ending circles
If an appeal does go all the way to a hearing it can take a very long time. Indeed, it can take so long that some claimants begin the process of being reassessed during, or immediately after, an appeal has been heard.

One member had already completed another ESA50 questionnaire before their hearing took place. They then had to attend a further medical just one week after winning their appeal to be moved to the support group:

“​The appeal process took well over a year. The Judge did apologise for this at the tribunal. And in fact I did have to complete another ESA50 because I was due to have my next ATOS assessment the following week! Although the tribunal ruled in my favour I still had to attend and as I could not give the doctor anything in writing from the tribunal, still had to undergo a rigorous assessmen​t.”​

Another member waited over a year to have their appeal upheld and received an ESA50 to complete within a week of doing so. As a result they had another medical and were placed back in the WRAG. However, when they made a formal complaint they were returned to the support group.

Yet another member also took over a year to get to a hearing and have the decision to place them in the WRAG overturned. However, because the judge quoted the WRAG regulations in the decision notice, instead of the support group regulations, they are still waiting to have the tribunal’​s error corrected and be moved.

One member waited 10 months for tribunal, but was unsuccessful. They have now appealed to the upper tier and, eight months further down the line, are still waiting for this appeal to be heard. They are now worried that time is running out:

“​I am on Contributions based ESA WRAG so am really worried that I am in the firing line for the April 2012 changes . . . I will lose £​37 a week from my War Pension if they do not see sense and place me into the Support Group, it really is a matter of life and death come April as I am already struggling as it is.”​

Tips on appealing
If you are considering challenging a decision to place you in the WRAG instead of the support group then we would obviously recommend that you get advice from a welfare rights worker, if you possibly can, and also make use of our guides to ESA claims and appeals.

In addition, you need to be as sure as you can be that there is strong evidence to support your existing award of the work-related activity component. That might mean collecting more evidence even though you may never need it.

Then you need to be sure that you have at least a reasonable case to argue for moving into the support group. Go through the support group descriptors, which you’​ll find listed in our guide to understanding ESA or on this page.

Decide which descriptor, or descriptors, apply to you. Then begin compiling the evidence that you think would persuade a tribunal that they apply. That can be evidence already in your ESA50 questionnaire, from your daily life, from friends and relatives and from health professionals.

Consider including supporting evidence with your GL24 appeal form, it certainly seems to have done the trick for some of our members.

Finally, don’​t take advice about your appeal from the DWP unless you can corroborate it from an agency that is independent and likely to actually understand the law.