ESA appeal query

Hi I'm new to this forum and trying to get my head round things. I'm currently waiting to go to tribunal because I lost my esa appeal.

Going through all the documents I've received I've found that the DWP are saying that I attended a medical on a certain date and the decisions have been made based on clinical finding at this medical and also things that I told them.

The problem is I didn't attend a medical and was never asked to do one.
So am now completely confused as to how to deal with this.
I just wondered has anyone else had this sort of thing happen to them and how did they deal with it.

Hope someone can help as no one seems to be able to advise me on how to deal with this so am feeling very alone.

Helen

Hi Helen

(When you mention that you lost your ESA appeal I presume you are referring to an adverse DWP decision?)

With all incorrect facts that the DWP rely upon, and this is no exception, the error must be raised at appeal. Either in a letter/written submission or orally at the tribunal hearing.

You can find further advice on challenging facts and submitting evidence in the ESA appeal guide.

Good luck

Derek

When you say that you are waiting to go to tribunal because you lost your ESA appeal, do you mean that you failed to qualify for ESA and are now actually appealing the adverse decision?

If so, as you did not have a face-to-face assessment for ESA it is difficult to understand how you failed to qualify for the allowance without having had an assessment? The DWP cannot by law find any claimant fit for work without having offered the opportunity to attend a medical assessment as part of the work capability assessment. If you have indeed been denied the opportunity this will form the basis of an appeal.

Insofar as the DWP submission arises, if the information is incorrect and you did not attend a medical assessment, the likelihood is that the outcome decision on your ESA entitlement is also wrong. Again this could also form the basis of an appeal.

Without wishing to second-guess an appeal tribunal, they could either arrange for you to attend a medical assessment, or the proper approach would be to rule that the DWP decision has no legal force because you were denied a medical assessment in accordance with the law, as laid down in the ESA regulations. In this situation the DWP would have to reinstate your previous entitlement pending a further work capability assessment, which would be bound to follow the proper legal procedures for conduct of a WCA.

Unfortunately as their are questions of law involved with your case, it is not possible to give a conclusive answer to your enquiry in an open forum, and therefore it is essential that you seek face-to-face advice from a CAB or welfare rights office who could go through the papers with you and discuss the options available pertaining to your personal circumstances.

See:-

Where to get advice?

Just to clarify a few points in my earlier post. I was put into the WRAG without a medical, I then appealed the decision and lost the appeal.

Again the decision was still made without a medical, but in the appeal decision paperwork the DWP have said I attended a medical on a certain date, clinical observations were made and I told them a typical day history!!

Hence it is now going to tribunal.

I know individual advice can't be given on here but I just wondered if anyone else has had anything similar happen to them or is this a first, and how did they get on. Welfare Rights and other advice agencies aren't sure what to say.

Hope this explains my earlier post a bit better

hells36 wrote:

Just to clarify a few points in my earlier post. I was put into the WRAG without a medical, I then appealed the decision and lost the appeal.

Again the decision was still made without a medical, but in the appeal decision paperwork the DWP have said I attended a medical on a certain date, clinical observations were made and I told them a typical day history!!

Hence it is now going to tribunal.

I know individual advice can't be given on here but I just wondered if anyone else has had anything similar happen to them or is this a first, and how did they get on. Welfare Rights and other advice agencies aren't sure what to say.

Hope this explains my earlier post a bit better

Hi,

Although we cannot go into specifics, the fact your Welfare Rights adviser doesn't know what to say is surprising to say the least. it maybe an idea to point out to the adviser Crazy Diamonds response above, particularly:

''If so, as you did not have a face-to-face assessment for ESA it is difficult to understand how you failed to qualify for the allowance without having had an assessment? The DWP cannot by law find any claimant fit for work without having offered the opportunity to attend a medical assessment as part of the work capability assessment. If you have indeed been denied the opportunity this will form the basis of an appeal''.

Your adviser may wish to take up this pointer as a basis for appeal.

Pete

hells36 wrote:

Just to clarify a few points in my earlier post. I was put into the WRAG without a medical, I then appealed the decision and lost the appeal.

Again the decision was still made without a medical, but in the appeal decision paperwork the DWP have said I attended a medical on a certain date, clinical observations were made and I told them a typical day history!!

Hence it is now going to tribunal.

I know individual advice can't be given on here but I just wondered if anyone else has had anything similar happen to them or is this a first, and how did they get on. Welfare Rights and other advice agencies aren't sure what to say.

Hope this explains my earlier post a bit better

From what I can gather from your most recent post, when you say that you lost your appeal is it the case that you asked the DWP to be placed in the support group on a reconsideration, but it was decided that you did not qualify, hence the appeal to the tribunal? If you lost an appeal as you have indicated, it could not be appealed again to a first-tier tribunal unless the decision was set aside by a District Judge on account of a procedural irregularity, or set aside by an Upper Tribunal Judge on a point of law

If you did ask for a reconsideration, a medical assessment may not be considered to be necessary in this situation to meet the qualifying conditions for the SG, and as the DWP did not change the decision, your case would be referred to a tribunal upon appeal. However, the DWP submission to the tribunal remains factually incorrect and therefore would still form the basis for an appeal.

Finally, it should be noted that if you are appealing a decision not to place you in the SG, there is a risk however small that the tribunal may remove your ESA entitlement altogether.

See:-

Is there any risk to challenging a decision?