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Received" need to asses you for ESA" -help please!

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11 years 1 month ago - 11 years 1 month ago #103984 by kotenok
Thank you Bro,- better late than never :)

In Guides - both mental and physical we have an exemptions:

" If you think that any of these exemptions may apply to you, inform the DWP office dealing
with your claim and give them details of your GP or other health professional ...
If this is the case then you will need to try to get medical evidence to support your exemption and send this to the DWP as soon as you can.
If you can’t obtain medical evidence explain the
situation to the DWP and tell them who best to contact to get the necessary evidence.
If you believe that this exceptional circumstance applies to you, include information with your
questionnaire and try to obtain supporting medical evidence.

Substantial risk

The second regulation says that you will be found to have limited capability for work if:
(b) you suffer from some specific disease or bodily or mental disablement and, by reasons of
such disease or disablement, there would be a substantial risk to the mental or physical
health of any person if you were found not to have limited capability for work.

For this exceptional circumstance regulation to apply you need to show firstly that you have a
specific ‘disease or disablement’.
This could be anything at all, for example: anxiety,
depression, bipolar disorder, schizophrenia.
Then you need to show that there would be a ‘substantial risk’ either to you or to someone
else if you were found not to have limited capability for work.
How might this pose a ‘substantial risk’?
For example, might your condition deteriorate seriously?
Might you attempt to harm yourself?
Would you be unable to leave your home to sign on and attend interviews. In this case
would you be left without any money to buy food and pay for heating and lighting with the
result that you would become ill?
Would you find attending job interviews or work very distressing and might you be liable to
lash out in fear and possibly physically injure someone else?
The risk may arise because of a mental health condition – for example because you may
become extremely anxious, depressed or distressed if you are found not to have limited
capability for work and this could cause danger to you."..

My question is - if one can’t obtain medical evidence, would be letter from carers be enough- like it says below?
Can someone explain how this works and what do people have to do, to prove that these exemptions /exceptional circumstance applies to them, please? I think that this could apply to my mother.


"If you can’t obtain medical evidence explain the
situation to the DWP and tell them who best to contact to get the necessary evidence.
If you believe that this exceptional circumstance applies to you, include information with your
questionnaire and try to obtain supporting medical evidence."

And again- thanks a million!
Last edit: 11 years 1 month ago by Gordon.

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11 years 1 month ago #103998 by Gordon
kotenok

Normally, what I will call lay evidence, should be accepted as being relevant to a claim, but in regard to the Exceptional circumstances I do not believe that it will be sufficient.

The test for the EC's is that there is substantial risk, while there is no clear definition of what this means, Case Law on similar subjects suggests that substantial requires a far higher level of proof than the normal level required for a Benefit Decision.

There is also the requirement that the risk must be the result of "some specific disease or bodily or mental disablement", which again a lay person would not be qualified to state.

So, I think that any challenge based on these Regulations is unlikely to be successful without the support of proper medical evidence.

Gordon

Nothing on this board constitutes legal advice - always consult a professional about specific problems
The following user(s) said Thank You: kotenok

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11 years 1 month ago - 11 years 1 month ago #104003 by kotenok
Thanks Gordon,
but how about this part?
-..."If you can’t obtain medical evidence explain the
situation to the DWP and tell them who best to contact to get the necessary evidence"
Last edit: 11 years 1 month ago by Gordon.

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11 years 1 month ago #104008 by Gordon

kotenok wrote: Thanks Gordon,
but how about this part?
-..."If you can’t obtain medical evidence explain the
situation to the DWP and tell them who best to contact to get the necessary evidence"


Whilst the DWP should, but rarely do, seek additional evidence in regard the ESA descriptors, they are not obliged to do so for the Exceptional Circumstances, the burden of proof lies with the claimant to provide any and all evidence to support their claim.

Gordon

Nothing on this board constitutes legal advice - always consult a professional about specific problems

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11 years 1 month ago - 11 years 1 month ago #104012 by kotenok
Replied by kotenok on topic esa transfer
“send a copy to the Decision Maker too?”
I know nothing about this, how do I find the Decision Maker? What are the benefits of sending copy to DM, do we need to send copy with additional info attached. Why- you “no longer advise this as strongly as we used to but many people like to do so” and why many people like to do so?- Where can I read about sending the copy to DM, please?
Apologies for a 100 questions…
Many thanks.
Last edit: 11 years 1 month ago by Gordon.

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11 years 1 month ago #104015 by Gordon
Replied by Gordon on topic esa transfer

kotenok wrote: “send a copy to the Decision Maker too?”
I know nothing about this, how do I find the Decision Maker? What are the benefits of sending copy to DM, do we need to send copy with additional info attached. Why- you “no longer advise this as strongly as we used to but many people like to do so” and why many people like to do so?- Where can I read about sending the copy to DM, please?
Apologies for a 100 questions…
Many thanks.


Please try and keep your questions in one topic, it makes it much easier for the Moderators to give you accurate and relevant advice.

There used to be (pre 2011), problems with evidence becoming detached from the ESA50 when a claimants file was sent from ATOS to the DWP, I will leave you to surmise how that might happen, so at that time our recommendation was to send a duplicate copy of the ESA50 with all of the evidence directly to the DWP Decision Maker.

Since then, the problem seems to have disappeared, I certainly cannot remember the last time that a member reported this as a problem, so we have updated our guidance to say that this is no longer recommended.

However, some members still wish to do this, and this is perfectly acceptable subject to the additional costs that would result, so if you want to do so, then I would include a covering letter explaining what you are doing, and mark the package for the attention of the Decision Maker.

Gordon

Nothing on this board constitutes legal advice - always consult a professional about specific problems
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