Decision maker error

I was put in the ESA Support Group in October 2011, transferred from income support. I did not have to attend a medical.

I wrote straight away to ask for the decision maker's statement of reasons as I wanted a copy for my records. I was sent a medical report ESA85A in which the healthcare professional put me in the WRAG group and advised "a return to work could be considered in 12 months". They didn't send me a statement of reasons (I'll call this an SOR), in my case the decision maker(DM)seems to have overruled the nurse to put me in the support group.

I wrote again in January to request an SOR. There was no response. I wrote again in April. Today 11th May I received a long letter from a DM. She writes that "the original DM was in error in placing you in the support group against the advice of the healthcare professional" and she has revised the decision and put me in the WRAG and "if there is any doubt on the part of the considering DM as to the appropriateness of the advice given by the HP then the case should be referred to a DM who makes considerative decisions" ... "it is not clear whether the placing you in the support group was in error or intentional"..."if the original DM believed the advice given was inappropriate then the decision should have been passed to a considerative decision maker".She says "there was no SOR that could be sent to you in respect of the original decision".

So because a DM didn't follow proper procedure then am I placed in the WRAG without my claim being passed to a considerative decision maker? Why can't it be passed on now?

I don't know whether to appeal or not as I fear losing even the WRAG.I don't think I scored enough points but assume I come under the exceptional circumstance that "there would be a substantial risk to the mental/physical health of any person if you were found not to have limited capability for work (related activity)" due to my mental health condion. I also assume that this was why the original DM placed me in the support group. These are just my assumptions, I have no evidence for this. Is there a chance I could even lose the WRAG and end up on JSA if I appeal?

I've also just been sent another ESA questionnaire. I have kept copies of my original claim and will just send in a replica if I have to as my condition has not changed. But do I still have to fill it in if I decide to appeal this decision?

I wouldn't know where to turn without this website so thank you to everyone involved at Benefits and Work.

What appears to have happened in you case is that unfortunately having requested form ESA85A which is entirely your prerogative, this has initiated a revision of the original ESA decision placing you in the support group.

I have not come across the term "considerative decision maker" which is hardly surprising as the word considerative does not exist in the English language, but what appears to have happened in your case is that a second more senior decision maker has revised the support group status on the grounds of a mistake as to a material fact, and placed you in the WRAG.

It is noted that you are unsure that you will appeal the decision due to the impact that it may have on your WRAG status, but should you choose to appeal, if the letter you have received does not carry the statutory right of appeal, it should have done so as there has now been a change of position. However, this communication which clearly carries a revision of the original decision should be treated as a means to appeal if you decide upon this option? In this respect see:-

How to submit an appeal.

Is there any risk to challenging a decision?

You will have to complete the ESA50 pending the outcome of any impending appeal, but there are far too many unanswered questions in your case. Regrettably, in order to fully clarify what has actually happened in your particular circumstances, an appeal may be the only way to conclusively find out why you were removed from the support group and subsequently placed in the WRAG?

Gordon wrote:

I believe there may be an issue of overpayment covering the difference between the WRAG rate and the Support Group rate, as the error appears to be the fault of the DWP, you should not be liable for payment, but this is unlikely to stop them "suggesting" that you should do so. You should seek face to face advice, if this occurs.

As there is no question of a failure to disclose or misrepresentation under the terms of Section 71(1) of the Social Security Administration Act 1992 (SSAA 1992), there are no grounds to recover what amounts to an official error overpayment. See:-

The Child Poverty Action Group (Respondent) v Secretary of State for Work and Pensions (Appellant).