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No ESA50 at WCA

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8 years 11 months ago - 8 years 11 months ago #132927 by Spaceman
No ESA50 at WCA was created by Spaceman
My friend in Liverpool has recently had his WCA with ATOS (one of the last before they handover to Maximus).

He wasn't sent an ESA50, although he thinks he might have completed one 2-3 years ago and they've only just got round to transferring him from Income Support.

He asked at his WCA if they had his ESA50 and was told no and that it was nothing to do with them but was for the DWP to look at.
Last edit: 8 years 11 months ago by . Reason: tick.

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8 years 11 months ago #132930 by Gordon
Replied by Gordon on topic No ESA50 at WCA
DJ

Thank you for the information.

Gordon

Nothing on this board constitutes legal advice - always consult a professional about specific problems

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8 years 11 months ago - 8 years 11 months ago #133105 by Spaceman
Replied by Spaceman on topic No ESA50 at WCA
I should've asked, if it comes to it and he has to request a mandatory reconsideration and maybe appeal, would the fact that the 'Health Professional' didn't have his ESA50 assist him at all?

It might be that even the DWP don't have one for him. Would that be disclosed on their decision and if not, how would he find out and would that assist him?
Last edit: 8 years 11 months ago by .

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8 years 11 months ago - 8 years 11 months ago #133112 by
Replied by on topic No ESA50 at WCA

David Jones wrote: I should've asked, if it comes to it and he has to request a mandatory reconsideration and maybe appeal, would the fact that the 'Health Professional' didn't have his ESA50 assist him at all?

It might be that even the DWP don't have one for him. Would that be disclosed on their decision and if not, how would he find out and would that assist him?


Hi DJ,

Although allowances should be made for non return of an ESA50 by the deadline date where it is known that the claimant suffers from mental health issues, an ESA50 "should" be sent to all claimants prior to an ESA assessment/reassessment.

This has been confirmed by Maximus in our recent : News Item.

This also applied when ATOS were carrying out The WCA.

A "current" ESA50 is an integral part of an assessment/reassessment, as it gives the claimant the chance to present evidence regarding the limitations that they suffer that are "current" at the time of any decision made as a result of The WCA.

Not only should the Assessor have a current ESA50 to refer to when making recommendations, the DWP ESA DM should have the same when coming to a decision.


"He asked at his WCA if they had his ESA50 and was told no and that it was nothing to do with them but was for the DWP to look at."



This is plain wrong !!

The DWP ESA WCA Team refer/re-refer the claimant to "Medical Services" (ATOS/Maximus) when it is time for their assessment/reassessment.

It is then up to ATOS/Maximus (not The DWP) to send the ESA50 to the claimant.

The ESA50 is then returned to ATOS/Maximus, not The DWP.

Any adverse decision made without a current ESA50, may be classed as "unsafe" and therefore challengeable !!

As a result of this, the DM could alter the adverse decision with or without the need of a further WCA or an appeal.

It would still be important for the claimant to show how and why their limitations qualified them for the appropriate ESA "Group".

You can make a Subject Access Request to The DWP for an ESA50 and any other documentation that they hold.

You can do this using a SAR Form :

SAR Form Download

From this page :

DWP Data Protection Policy

Or you can make the request in the form of a letter, as long as you make it clear that you are making a formal SAR under The Data Protection Act 1998.

Address the envelope : FAO The Data Controller, at the Benefits Office dealing with the claimant's ESA.

Write DPA 1998 SAR in front, top, left corner of envelope.

Once received, they have 40 calendar days to comply.

Sending Documents to the DWP or ATOS

You should receive copy of all/any ESA50's that they have and any other documentation that is requested.

bro58
Last edit: 8 years 11 months ago by .

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8 years 11 months ago - 8 years 11 months ago #133131 by Spaceman
Replied by Spaceman on topic No ESA50 at WCA
Thanks bro58.

Even if any adverse decision made without a current ESA50 may be classed as "unsafe" and therefore open to challenge without the need for a further WCA or appeal, without the evidence that there was no current ESA50 it might be hard to challenge the decision. Although my friend did get a recording of the WCA, which presumably includes the comments that were made about the ESA50 (I'll have to check that with him) but that doesn't prove that the DWP didn't have it when making the decision.

So it might be best if he sends off the SAR now as they're allowed 40 days to deal with those, whereas he'd only have a month to request a mandatory reconsideration. I suppose the risk is that if they realise their mistake before making a decision, they might just decide to start all over again and require him to fill in another ESA50, have another WCA, etc and he'd obviously rather avoid that if possible.

What do you think would be the best approach for him?
Last edit: 8 years 11 months ago by .

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8 years 11 months ago - 8 years 11 months ago #133148 by
Replied by on topic No ESA50 at WCA

David Jones wrote: Thanks bro58.

Even if any adverse decision made without a current ESA50 may be classed as "unsafe" and therefore open to challenge without the need for a further WCA or appeal, without the evidence that there was no current ESA50 it might be hard to challenge the decision. Although my friend did get a recording of the WCA, which presumably includes the comments that were made about the ESA50 (I'll have to check that with him) but that doesn't prove that the DWP didn't have it when making the decision.



So it might be best if he sends off the SAR now as they're allowed 40 days to deal with those, whereas he'd only have a month to request a mandatory reconsideration. I suppose the risk is that if they realise their mistake before making a decision, they might just decide to start all over again and require him to fill in another ESA50, have another WCA, etc and he'd obviously rather avoid that if possible.

What do you think would be the best approach for him?


The ATOS Assessor should have had access to an ESA50, and this should have been a current one.

One part of the whole process as far as ATOS were concerned was to examine the "current" ESA50 to decide whether or not there was enough evidence to carry out a paper based assessment without the need for a a face to face.

This process could not have taken place if ATOS did not have the ESA50 as claimed by them.

From what the ATOS assessor stated, they were told to carry out a face to face by The DWP without issuing an ESA50.

It used to be common for ATOS and The DWP to play "ping pong" with the claimant when part of The WCA process was at issue.

i.e. ATOS passing the book to DWP and vice-versa.

When issuing a SAR, they can also request copy of The ESA85 Medical Report compiled by the ATOS Assessor as a result of the face to face.

This should include a list of evidence that they have referred to when making their recommendations, it would be interesting to see whether the ESA50 was mentioned as being part of such evidence.

They could also request an LT54 Form which is generally filled out by The DM when making the decision, a description of which can be found at the bottom of this list of : ESA Forms

An : ESA 113 Questionnaire may have also been sent to their G.P., so they should request that by name also.

To cover all bases, after specifically requesting the ESA50, ESA85, LT54 and ESA113 in The SAR they could also request "all" documentation used in coming to the decision.

If your friend was not sent a current ESA50 then neither ATOS nor The DWP could have had one.

If the one referred to by The DM was the one from 2/3 years ago, then obviously that is not current as previously discussed !

If the DWP doesn't supply a copy of an ESA50 that they are supposed to have referred to, where is it ?

If they have lost it, there would then be a potential breach of The Data Protection Act 1998.

All these issues should be considered.






Yes, send off The SAR as advised in my previous post as a separate issue in it's own envelope ASAP.

If they are to request an MR, they should not miss the one month deadline if the personal information requested in The SAR has not arrived.

They should state in The MR request that they have issued a SAR and are awaiting copy of the documentation and will forward any further evidence as a result of receiving the documents as soon as they have them.

It is a possibility that a fresh ESA50 may be issued, and a fresh WCA may take place with or without the need for a face to face.

I can only provide information on potential scenarios, it is up to the individual to make an informed decision on how to progress.

bro58
Last edit: 8 years 11 months ago by .

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