Hi

I support a relative who has bad mental health issues - his issues have been on-going for about 8 years. He does not have any formal diagnoses, he is forever being treated for depression, anxiety and psychotic episodes and delusions. He has never been capable of working (although he did get a job once on a government initiative, but had to leave very quickly). His family 'fathers side' all have a strong history of schizophrenia and suicides. This was all told to the assessor but none of it was recorded. My relative has been sectioned several times under the mental health act.

I went with him to his ESA assessment which followed on from him completing an ESA50.

I asked the assessor if she was trained in mental health and she said she was a nurse - I asked her again if she was trained in mental health and she said back in her country she had worked with mental health as part of her training.

Relative went through the assessment and wherever I thought he hadn't given enough info for answers I prompted him and reminded him of instances/examples.

I now have a copy of the report and I can't believe some of the 'misinterpretations' and the report does not reflect a true picture of what was told. The report also said that I was present and was given a 'warning'. I wasn't given a warning. A warning for what I keep thinking? She did not want me to take notes and she made that quite clear - could this be what she is referring to as a 'warning'?.

In a million years I could never see this relative being capable of work. The general public are very very uncomfortable around him and this was mentioned at the interview. His own relatives (including me quite often) are very uncomfortable around him and he is totally isolated. The report actually stated the reverse, that he had family but 'he was uncomfortable around them'.

The report concluded that he was healthy in appearance, well kempt (he had slept in his clothes for a few days and hadn't washed!).

The report says that work could be considered within 18 months. I would love this to be true but feel unless a miracle takes place it just is not going to happen.

Is there anything I should do? Should I write on his behalf and point out what is incorrect about this report? Should I mention how the general public do not feel comfortable with him and that his own family won't see him because they are scared. He has had terrible delusions in the past. No proper delusions for about a year but he has wanted to self harm and even that wasn't mentioned in the report. Also, within 48 hours of the assessment he had to be admitted to a psychiatric unit for a week and is now supported by CPNs.

Many thanks for your help.

Terri

You do not say whether a Decision has been made on your relative's claim?

If no Decision has been made then you are in a very grey area! The DWP Decision Maker usually marks the assessment as the last point that they will accept new evidence or submissions prior to their making a Decision. It would be unusual for you to have received the ESA85 before the Decision is made, the DWP used to operate a policy of not sending out in advance of the Decision being made.

That said you have nothing to lose by writing to the DM and pointing out the discrepancies on the report, however, I feel that the fact that they were admitted to a psychiatric unit immediately after the assessment is by far and away the most important piece of information to make them aware of.

Obviously this needs to be done as soon as possible. Send the letter to the DWP office currently dealing with their claim marked for the "immediate attention of the Decision Maker".

If a Decision has been made, then the DM will not re-visit the claim outside the context of a Mandatory Reconsideration, see our ESA MR and Appeal guide for more information on the process.

Once the MR has bee accepted by the DWP you can send in further evidence or clarification of the ESA85, the DWP usually attempt to contact the claimant during the MR process, so it may help if you can be available for this.

If we can help further then please reply to this post.

Gordon

Hello

It now transpires a Decision was made (we found out by phoning them), but have not received anything in writing yet.

My letter has gone off (requesting report to be amended because it missed out vital information that was given at the assessment). Also the letter advises on the recent hospital admissions.

Another letter is being sent today to request a Mandatory Reconsideration.

I will have a good read of the ESA MR and Appeal guide. Does the guide give information on the ESA descriptors? If not, where can I find this information?

Terri64 wrote: Hello

It now transpires a Decision was made (we found out by phoning them), but have not received anything in writing yet.

My letter has gone off (requesting report to be amended because it missed out vital information that was given at the assessment). Also the letter advises on the recent hospital admissions.

Another letter is being sent today to request a Mandatory Reconsideration.

I will have a good read of the ESA MR and Appeal guide. Does the guide give information on the ESA descriptors? If not, where can I find this information?

Hi T64,

I am glad to hear that you seem to be making some headway with these issues.

You are entitled to receive a "Written Decision Notice" by law, although they may say that they have already sent the above.

The Decision Notice is important as it also includes your legal rights to an MR/Appeal of the decision, including deadlines.

A decision to award ESA in the WRAG (LCW) or ESA in the Support Group (LCWRA), or indeed a decision to find the claimant “fit for work” carries a right to (an MR) appeal under s12 of the SSA 1998, see :

www.hmrc.gov.uk/nicmanual/volume_1/ssa_1998.pdf

Decisions which carry a right to appeal under s12 shall be notified to the claimant in writing in accordance with Reg 28 of the Decisions and Appeals Regulations 1999. See :

www.legislation.gov.uk/uksi/1999/991/regulation/28/made

I would advise that you adhere to the guidelines below in all future correspondence with DWP/ATOS :

Sending Documents to the DWP or ATOS

Information on qualifying for The WRAG & SG of ESA can be found from the links below :

Qualifying for the WRAG

&

Qualifying for the Support Group

Here are the current "Functional" ESA descriptors :

WRAG (LCW)Schedule 2 Descriptors

&

SG (LCWRA)Schedule 3 Descriptors

If a claimant cannot qualify for The WRAG and/or SG under the "Functional" Descriptors, as above, it should then be considered whether or not they qualify under The Exceptional Circumstances Rules as at :


ESA Reg 29 for entry to The WRAG (LCW)

PLUS Post 28/01/13 Amendment of :

(3) Paragraph (2)(b) does not apply where the risk could be reduced by a significant amount by—

(a)reasonable adjustments being made in the claimant’s workplace;

or

(b)the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.”.

From : www.legislation.gov.uk/uksi/2012/3096/regulation/3/made

And/Or :

ESA Reg 35 for entry to The SG (LCWRA)

PLUS Post 28/01/13 Amendment of :

(3) In regulation 35(1) (certain claimants to be treated as having limited capability for work-related activity)(6), for sub-paragraph (b) substitute—

“(b)the claimant is-

(i)receiving treatment for cancer by way of chemotherapy or radiotherapy;

(ii)likely to receive such treatment within six months after the date of the determination of capability for work-related activity; or

(iii)recovering from such treatment,

and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or”.

From : www.legislation.gov.uk/uksi/2012/3096/regulation/4/made

This is all covered in The ESA Claims Guide that I provide the links for in my other post to you : Here

"And our : "Employment and Support Allowance claims for Mental Health and Learning Difficulties: a guide to the limited capability for work assessment.
This is a fully comprehensive guide to the assessment procedure on mental health and learning difficulties grounds."

bro58

Thank you so much. Truly appreciated.

Hi T64,

Although it may be helpful to point out any discrepancies in a "medical report", the important issue will be show that your relative qualifies for The WRAG by scoring at least 15 points cumulatively across all the functional WRAG descriptors, or fulfills ESA Reg 29, and/or, that they qualify under any "one" of the functional SG descriptors, or they fulfill ESA Reg 35.

So there are two "tests" really, carried out at the same time.

Firstly, does the claimant have LCW that places them into the WRAG, then if they do, do they also have LCWRA that then places them into The SG.

With all the descriptors, the claimant should only be deemed to be able to carry out any of the "activities" if they can do so repeatedly, reliably and safely for the majority of the time. (>50% of the time)

If they can't then they should not be classed as being able to carry out the activities at all.

With regards to The SG descriptors, it is not just for the majority of the time, it is also on the majority of the occasions that the activities are attempted, see :

ESA Reg 34. (2) Applicable to Support Group :

“A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor”

www.legislation.gov.uk/uksi/2008/794/regulation/34/made

If non of the functional descriptors are applicable, you can investigate qualifying under "Substantial Risk" as at ESA Reg 29 and/or ESA Reg 35.

It can help to use Regs 29/35 as a back up to any of the functional descriptors that may be applicable.

Re : MR/Appeal, see : Disability Rights UK Factsheet - Appeals and Mandatory Reconsiderations.

Mandatory Reconsiderations Explained

and our ESA MR/Appeals Guide on this page :

ESA Claims Guides

bro58