Tribunal Outcome

Good afternoon,

I am currently awaiting an ESA Tribunal hearing against my unsuccessful migration from IB to ESA, when I received 12 points at the WCA. I am fortunate to be represented by a senior benefits officer who, after failing to get the original fit for work decision overturned at the reconsideration stage, has now sent a submission to the Tribunal Service on my behalf. On Saturday, I received a letter from the Tribunal Service enclosing a copy of a supplementary submission from the DWP in relation to my case, which basically agrees that I do have mobility issues “sufficient to raise the total award of points above the threshold for LCW and should have been placed in the WRAG”.

In her submission, however, the benefits officer stated that not only should I, at the very least, have been awarded sufficient points to have been granted WRAG status but that I should have been placed in the SG, in respect of the mobilization descriptor. In their supplemental submission, the DWP contended that, in relation to this, the evidence of the HCP’s report contradicted the statements from my Representative and they were not completely satisfied that the effects on my functional capabilities were sufficient to award placement in the SG.

“Consequently the decision appealed against has not been changed.”

Would you say that the above, i.e. appearing to back down but not to change the decision, is normal practice by the DWP and, having referred to the above, in principle, do you think I should be guardedly optimistic that my appeal to be awarded ESA in the WRAG, if not the SG, is likely to succeed at Tribunal?

Also, am I safe to assume that the Tribunal Service will have sent a copy of this supplemental submission to my Representative, even though it does not indicate this in the letter, as her details were provided on the Tribunal enquiry form, or should I confirm this with the Clerk?

I am currently unable to refer any of the above to my Representative, as she is away until the middle of September, and hence your unofficial advice would be very gratefully received.

Thank you.


Spridgett

Dear Gordon,

Thank you for your response. In essence, the problem with regard to my ESA claim and mobility issues is that, both on the ESA50 questionnaire and at the ATOS assessment, I inadvertently gave an incorrect figure when referring to how far I could mobilise in relation to the length of my garden! I know that you are unable to offer advice on personal cases, but basically I failed to convert feet to metres correctly and, as a result, gave a gross overestimate as to the length of my garden. However, my Representative and I have been able to provide documentary proof as to its correct length, which was entered in the appeal submission. The ATOS assessor gave me nil points for mobility, even though the incorrect distance I quoted was 75 metres (should have been approximately 31 feet!), which should have scored me some points at least. Moreover, at no time did the assessor see me mobilise, either on foot or by self propelling my manual wheelchair. In fact, she commented in her report that I could benefit from the use of an electric wheelchair, which I understand does not form part of the WCA!

As you say, I will have to discuss this further with my Representative, when she returns to her office. However, returning to the final strand of my original post, the letter from the Tribunal Service does not indicate that a copy of this latest document has been circulated to my Representative. Am I safe to assume that it has or would it be best to confirm this with the Clerk?

Thank you once again.


Spridgett