No ESA50 at WCA

Well that's confusing! They're meant to send an ESA50 and have it to refer to both at the WCA and when the DM makes his decision but it doesn't actually matter if they don't bother?

My friend's told me he listened to his recording and says after he asked the HP if she had the form, she said they didn't have one and because he suffers from anxiety & depression he didn't need to fill one in.

David Jones wrote: Well that's confusing! They're meant to send an ESA50 and have it to refer to both at the WCA and when the DM makes his decision but it doesn't actually matter if they don't bother?

My friend's told me he listened to his recording and says after he asked the HP if she had the form, she said they didn't have one and because he suffers from anxiety & depression he didn't need to fill one in.

Hi DJ,

As Gordon has previously stated : Here, there is no legal requirement for an ESA50 to be sent to the claimant as part of their ESA Assessment/Re-Assessment.

However, any decision made without a current ESA50 would be more liable to successful challenge.

"she said they didn't have one and because he suffers from anxiety & depression he didn't need to fill one in."

The HP's interpretation is wrong !

It is stated that where an ESA50 is sent to a claimant who is known to suffer from mental health conditions, allowances and further investigations should be made where the ESA50 is not returned. or returned late.

Whereas, a claimant who is not known to suffer from mental health conditions, may just have their file returned to The DWP which could mean that the claimant's benefits payments were stopped unless they can show "good cause" for not returning the ESA50 or returning it late.

bro58

bro58 wrote: Hi DJ,

As Gordon has previously stated : Here, there is no legal requirement for an ESA50 to be sent to the claimant as part of their ESA Assessment/Re-Assessment.

However, any decision made without a current ESA50 would be more liable to successful challenge.

Hi bro58,

I just find those two positions hard to reconcile, as government departments (or their contractors) rarely do anything that they're not legally required to do, especially when doing it would potentially make it more likely they have to pay out money, so if they're not legally required to, I wonder why they would just not bother in most cases and I don't see how a failure to send out the form can help any legal challenge if there's no statutory duty to do so.

It would seem like they could argue that the claimant was still free to bring any medical evidence (which still appears to be the claimant's responsibility to gather, except perhaps in the case of mental health patients) and explain his conditions at the WCA, so it didn't matter if there was no ESA50. Even if the claimant wasn't told he could do that, if there's no obligation on the DWP to inform people that they can, then I can't see that this would help in a legal challenge either. It just seems very wrong that there's no legal obligation on the DWP to allow the claimant to at least set out his/her conditions and limitations in writing.

The HP's interpretation is wrong !

It is stated that where an ESA50 is sent to a claimant who is known to suffer from mental health conditions, allowances and further investigations should be made where the ESA50 is not returned. or returned late.

Whereas, a claimant who is not known to suffer from mental health conditions, may just have their file returned to The DWP which could mean that the claimant's benefits payments were stopped unless they can show "good cause" for not returning the ESA50 or returning it late

I've been reading www.bailii.org/ew/cases/EWCA/Civ/2013/1565.html and whilst that case is about whether the DWP have a duty to seek FME in the case of MHPs, rather than expecting the claimant to provide it, it does set out the normal procedure regarding the ESA50 at para.14-17. Although it's just a summary of the procedure, not an accurate statement of the statutory duties in relation to the ESA50, it does suggest, at para.16, that the HP was correct to say the claimant wasn't required to fill one in because of his mental health problems, which is a different matter to whether one should have been sent to him at all.

David Jones wrote: Well that's confusing! They're meant to send an ESA50 and have it to refer to both at the WCA and when the DM makes his decision but it doesn't actually matter if they don't bother?

My friend's told me he listened to his recording and says after he asked the HP if she had the form, she said they didn't have one and because he suffers from anxiety & depression he didn't need to fill one in.

Its all based on having official medical evidence and proving how that does affect the individual relating to the descriptors,,, they couldn't care less about the fact being, someone is disabled or dying.

why it is really a medical as they use to do years ago when had to prove you were affected by the illness, disability. Only now that isn't good enough and its how it affects someone.

Just with all the rules and regulations surrounding these new benefits and the middle men; private companies, DWP, it all far to easy for people to get bogged down by it all and not be able to see the wood for the trees.

David Jones wrote:

bro58 wrote: Hi DJ,

As Gordon has previously stated : Here, there is no legal requirement for an ESA50 to be sent to the claimant as part of their ESA Assessment/Re-Assessment.

However, any decision made without a current ESA50 would be more liable to successful challenge.

Hi bro58,

I just find those two positions hard to reconcile, as government departments (or their contractors) rarely do anything that they're not legally required to do, especially when doing it would potentially make it more likely they have to pay out money, so if they're not legally required to, I wonder why they would just not bother in most cases and I don't see how a failure to send out the form can help any legal challenge if there's no statutory duty to do so.

It would seem like they could argue that the claimant was still free to bring any medical evidence (which still appears to be the claimant's responsibility to gather, except perhaps in the case of mental health patients) and explain his conditions at the WCA, so it didn't matter if there was no ESA50. Even if the claimant wasn't told he could do that, if there's no obligation on the DWP to inform people that they can, then I can't see that this would help in a legal challenge either. It just seems very wrong that there's no legal obligation on the DWP to allow the claimant to at least set out his/her conditions and limitations in writing.

The HP's interpretation is wrong !

It is stated that where an ESA50 is sent to a claimant who is known to suffer from mental health conditions, allowances and further investigations should be made where the ESA50 is not returned. or returned late.

Whereas, a claimant who is not known to suffer from mental health conditions, may just have their file returned to The DWP which could mean that the claimant's benefits payments were stopped unless they can show "good cause" for not returning the ESA50 or returning it late

I've been reading www.bailii.org/ew/cases/EWCA/Civ/2013/1565.html and whilst that case is about whether the DWP have a duty to seek FME in the case of MHPs, rather than expecting the claimant to provide it, it does set out the normal procedure regarding the ESA50 at para.14-17. Although it's just a summary of the procedure, not an accurate statement of the statutory duties in relation to the ESA50, it does suggest, at para.16, that the HP was correct to say the claimant wasn't required to fill one in because of his mental health problems, which is a different matter to whether one should have been sent to him at all.

Hi DL,

The "bailii" ruling that you have cited is not current.

There has been a very recent 3 Judge Panel ruling on whether claimants with mental health problems are put at substantial disadvantage by the WCA, contrary to the Equality Act 2010.

See : [2015] UKUT 107 (AAC)

[2015] UKUT 107 (AAC)

bro58

Thanks bro58

I think the Court of Appeal judgment is still current, in the sense that its findings stand and may be relied on in other proceedings, perhaps as binding precedent, whereas the Upper Tribunal's findings, subsequent to and reliant on the Appeal courts findings, perhaps do not. I'm not sure where the UT sits in the court hierarchy but if it's equivalent to the High Court then I don't think its findings set binding precedent.

Anyway, there doesn't seem to be anything in those rulings that helps clarify whether there's a requirement to send out an ESA50 or that failing to do so would be a ground to support an appeal or MR. There are several paragraphs where it states that an ESA50 is or should be sent out in all cases but those are just summarising the courts understanding of the procedure and aren't findings of the court that could be relied on to support an appeal, I don't think.