ESA50 denied before WCA

bro58 wrote: Hi a,

Yes, there is a PDF ESA50 download link available from one of the links that I have provide in my previous response.

Guidance states that allowances and further investigations should be made before finding a claimant fit for work for failure to return an ESA50 where the claimant is known to be vulnerable due to suffering MH issues.

However, it does not state that an ESA50 should not be sent out to such claimants.

There should be no reason to covertly record an ESA face to face, as Maximus (CHDA) do openly offer this facility as long as you give them enough notice.

Extract from : Their Website :

I would always advise claimants to make this request with the ESA50, and then follow it up when they receive the letter of appointment to ensure that the facility will be in place.

bro58

The current practice seems to be to that no ESA50 is sent out in the first place, no matter how old the previous is. Accordingly there is an even shorter time or rather no time available for claimants with MH issues to 'download' one, let alone for them to - in most instances - not being able to fill it out - particularly if there is only less than a week before the appointment.

This was one of the main issues of the 2012 judicial review regarding the previous provider's practice in this respect and it seems the situation has become seriously worse which should clearly not be acceptable where the claimant is 'fast-tracked' to an extent that they do not have any opportunity to fill out the ESA50.

It must sometimes seem to claimants that the DWP is trying to get them off benefit by any means possible!!!

Well I didn't appreciate being asked to attend a medical examination without first being given the opportunity to present my own written evidence on form ESA50, so in accordance with the instructions contained within my appointment letter, I wrote to the DWP office dealing with my claim for further details/clarification on the matter and sent it by recorded mail. I know they received it, but it went unanswered and I was simply sent form BF223 asking me why I didn't attend the appointment. Once again, I outlined the fact that I was unhappy with the procedure they were following and that I was awaiting a response on the issues I raised in my letter. I couldn't believe it when the DWP simply stopped my ESA for "Non-Attendance" ! Of course, I requested a Mandatory Reconsideration and included a whole host of supporting documentation, again sent by recorded mail and I know they received it on Monday 23 November. I've heard absolutely NOTHING since then ! This is crazy - how long are they allowed to take over these things, I've had no ESA for weeks and it's my only source of income.

Bakerman wrote: Well I didn't appreciate being asked to attend a medical examination without first being given the opportunity to present my own written evidence on form ESA50, so in accordance with the instructions contained within my appointment letter, I wrote to the DWP office dealing with my claim for further details/clarification on the matter and sent it by recorded mail. I know they received it, but it went unanswered and I was simply sent form BF223 asking me why I didn't attend the appointment. Once again, I outlined the fact that I was unhappy with the procedure they were following and that I was awaiting a response on the issues I raised in my letter. I couldn't believe it when the DWP simply stopped my ESA for "Non-Attendance" ! Of course, I requested a Mandatory Reconsideration and included a whole host of supporting documentation, again sent by recorded mail and I know they received it on Monday 23 November. I've heard absolutely NOTHING since then ! This is crazy - how long are they allowed to take over these things, I've had no ESA for weeks and it's my only source of income.

Hi Bm,

You should be allowed one failure to attend without being found fit for work and your ESA ceasing.

However, if you fail to take part in a second re-arranged face to face they can stop your ESA unless you can show "Good Cause"

Here are the ESA Regs regarding failure to take part in a face to face, and what they should consider when looking at whether you had "Good Cause" for non attendance.


www.legislation.gov.uk/uksi/2008/794/regulation/23/made

www.legislation.gov.uk/uksi/2008/794/regulation/24/made

There is also guidance for Decision Makers (DM) on this issue from U2261 of this document :

Chapter U2 – ESA limited capability for work-related activity. and more under the heading : "Failure to attend or submit to a medical examination" From 42241 onwards in : DM Guide CH 42.

You could use the arguments mentioned in this link : Invited to an ESA Face to Face Assessment (ESA “medical”) but no ESA50 sent. from This Post .

However, whether they would accept those arguments as "Good Cause" in an unknown.

You may have a fight on your hands, This Member had a "Notifiable Disease" and was still found fit for work for failure to attend.

You could involve your M.P. : Contacting your MP

There is no time limit for how long they can take to carry out an MR.

If you are short of income, you could claim JSA whilst the MR is ongoing, and then if you go on to appeal, you can revert back to ESA Assessment Rate.

See : This Post

Failing that, as you have been found fit for work on a technicality, i.e. failure to attend, you could make a fresh claim for ESA if your MR/Appeal is unsuccessful, but you would not receive any payment until 6 months have elapsed since the date of the fit for work decision

bro58