No ESA50 at WCA

Well my friend's received the decision letter now and has been awarded 0 points, which he's obviously distressed about.

Even more so because the first line of the DM's report states that he failed to return the ESA50, when he clearly said during the WCA that he hadn't received one for 3 years and the HP told him they didn't need one for him.

So although there's no legal obligation on them to send one out, apparently they can still hold it against you if you fail to return a form you were never sent!

David Jones wrote: Well my friend's received the decision letter now and has been awarded 0 points, which he's obviously distressed about.

Even more so because the first line of the DM's report states that he failed to return the ESA50, when he clearly said during the WCA that he hadn't received one for 3 years and the HP told him they didn't need one for him.

So although there's no legal obligation on them to send one out, apparently they can still hold it against you if you fail to return a form you were never sent!

Hi DL.

That's bad news !!!

If you want to push the issue of the "missing" ESA50 you could ask the DWP/ATOS/Maximus to provide administrative evidence that the ESA50 was posted to your friend.

I am afraid that if they can prove that it was posted it will be assumed that your friend received it unless that he can prove to the contrary.

i.e. Historical problem with not receiving post, post going missing, etc, etc.

In the mean time the important issue is to make a written MR request within a month of the adverse ESA decision notice letter if your friend wishes to challenge the decision.

These might have been posted before, but.........

See : ESA MR/Appeals Guidance.

Mandatory Reconsiderations Explained

Disability Rights UK Factsheet - Appeals and Mandatory Reconsiderations.

&

MOJ Video of ESA Appeals Process and Tribunal

bro58

Thanks bro58,

I've advised him to send off his SAR, a request for the statement of reasons and his request for a MR ASAP and that he'll probably want to say he'll be forwarding the evidence disclosed by the SAR when he receives it. Although that's likely to delay the MR, in this case it might be necessary.

I imagine the documents disclosed will show whether there's any record of an ESA50 being sent out or not, as far as I know they haven't actually said that one was yet but I'll let him know he can ask for administrative evidence if they claim it was. I know there was an issue with some DWP department sending documents to his old address, several years after he'd moved and despite the fact that he'd notified them of his change of address and the rest of the DWP were sending documents to his current address but I doubt that's the issue here, as he received letters from ATOS about the WCA but no ESA50.

I'm not really clear how I should advise my friend to approach the MR.

Is he meant to show that the HP/ATOS made mistakes in their assessment of him, or does he just need to explain his conditions and limitations to the DM, much as he would have done in the ESA50 had one been sent out but with the advantage that his evidence now goes straight to the DM, rather than being filtered through ATOS?

David Jones wrote: I'm not really clear how I should advise my friend to approach the MR.

Is he meant to show that the HP/ATOS made mistakes in their assessment of him, or does he just need to explain his conditions and limitations to the DM, much as he would have done in the ESA50 had one been sent out but with the advantage that his evidence now goes straight to the DM, rather than being filtered through ATOS?

Hi DL,

(I will write in first person as if it is you, that is easier)

If you wish to complain to ATOS, (if they carried out the face to face rather than : The Centre for Health and Disability Assessments (CHDA) (Maximus) who took over the ESA WCA Contract from ATOS on 02/03/15.) about the quality and standards of the assessing HCP and their subsequent report, you can do so via this email address :

customer-relations @atoshealthcare.com

(close the gap between relations and @)

Keep this as a separate issue to your MR request to The DWP.

It may invariably help to point out discrepancies/errors in the assessors medical report, (ESA85) but that alone will probably not result in the desired result.

You should do so whilst referring to your counter arguments of how and why you should have scored points/qualified under applicable descriptors.

e.g. The HCP stated that I do not score any points under Activity/Descriptor x, which is contradictory to the oral evidence that I gave, and the documented evidence provided at Page xx. (You could also cite evidence in The ESA50 if they have one that they have used, and an ESA113 if one was sent to your G.P.)

So you are pointing out errors in The ESA85 whilst posing counter arguments that contradict the assessors recommendations/observations/findings.

The important issue is to make it absolutely clear/reiterate how and why you qualify for The WRAG/The SG.

bro58

Thanks bro58, that makes things much clearer.

I was struggling to explain to my friend what he needs to do but your advice summarises it quite succinctly and is a great help.

Of course, it could be a while before he receives the documents in response to his SAR but as it will probably strengthen his case if he can refer to any errors in the medical report, I guess it would be best if he waits to write his substantive arguments until after he receives them and just submits some general points with his immediate request for a MR. I guess he could wait a couple of weeks to see if the documents turn up in time before submitting his request for a MR and draft what arguments he can in the meantime.

It's a shame that they don't provide at least the ESA85 as a matter of course when denying claims, rather than claimants having to make a SAR thus prolonging the MR process, during which time the claimant is unable to receive any ESA.