ESA confusion

Gordon wrote:
I'm sorry, but again no one is saying this! The ESA legislation requires an assessment to be carried out before a new Decision can be made but it does not require that the assessment is a face to face.

Gordon

Hi Gordon,

In this case the OP was moved from SG to WRAG on 03/09/16 without a further assessment.

With respect, I think you’re confusing initial claims for ESA with supersession decisions.

Upon an initial claim for ESA (or perhaps an IB to ESA transfer), it is possible to be placed in the WRAG without an FTF. However, to take away a claimant’s existing SG award and replace it with an WRAG award requires a supersession. The power to do this lies within the Social Security and Child Support (Decisions & Appeals) Regulations 1999, not the ESA legislation. The SSCS(DA) regs apply to all benefits.

Regulation 6 gives decision makers the power to supersede an ESA award where it: -

2 (r) is an employment and support allowance decision where, since the decision was made, the Secretary of State has–
(i) received medical evidence from a health care professional approved by the Secretary of State, or
(ii) made a determination that the claimant is to be treated as having limited capability for work in accordance with regulation 20, 25, 26 or 32(2) of the Employment and Support Allowance Regulations.

Reg 6(2)(r)(i) is the condition that prevents the DWP from finding a claimant fit for work without an FTF (the medical evidence is required), and it seems equally applicable to a claimant moved from SG to WRAG. Without this, the DM would not have grounds to supersede the SG award.

Just to touch on what you said earlier, that there is no specific requirement to refer to decision and date when requesting a mandatory reconsideration, an MR is a request to the DWP to reconsider their decision – it simply isn’t possible to do this without referring to the decision, or they won’t know what decision you want reconsidered!

Decisions are identified by the date they were made – it’s quite possible for a claimant to have two decisions regarding the same benefit within two weeks. I don’t think it is possible, or practical, to lodge an MR request when you have no written confirmation of the decision.

Kind regards,

Derek

Gordon wrote: Derek

I am afraid it is you that is confusing the situation, you are assuming that because there was no face to face assessment, that no assessment has taken place...

Gordon

Hi Gordon,

I’ll just make one final attempt to make myself understood.

I am NOT assuming that an assessment has not taken place. On the contrary, it is quite clear from the OP’s first post that she DID attend a face-to-face assessment in May and she received the resulting ESA85.

The result of this assessment was that she was transferred from IB to ESA support group – the OP states that she received written confirmation in a letter dated 03/09/16.

The OP was then verbally informed that she was in the SG until 03/09/16 (confusingly the same date as the award letter) but then moved to the WRAG, but has not received any written confirmation. It is THIS decision, assuming such a decision has been officially made, that I was questioning the legality of.

I am aware that the OP was told that the letter was a result of “human error”, and I suspect that the advisor was probably not clear or accurate, so the facts of the case are unclear. However, it takes something a little more formal than this to invalidate a decision.

I am not arguing with you or questioning the advice you gave. I’m simply pointing out that in order to supersede an ESA award, the decision maker has to take two steps.

First, he has to establish grounds for making the supersession. Second, he has to show that the evidence supports his decision.

In normal straightforward circumstances where the DWP have received medical evidence in the form of an ESA85 (no matter how ridiculous its contents), the first step is taken care of – D&A Reg 6 gives him the grounds for supersession and it’s simply a matter for the appellant to argue that they meet the criteria.

In more complex cases such as where a claimant has a decision letter placing them in the SG, and there has been no WCA AFTER this decision (03/09/16 in this case), or written notice of revision, supersession or correction of the decision letter, but the DWP claim that that the claimant is now in the WRAG, it may be worth challenging whether, or on what grounds, the DM has to supersede the ESA award dated 03/09/16. Of course, this can be done in addition to arguing that they meet the criteria. To do this, you only need to ask the tribunal to make a finding as to whether the DM has grounds for revision/supersession.

Should the appeal fail, the tribunal will at least be required to adequately address the issue in the statement of reasons.

Hope this is clearer,

Derek