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Completion of the ESA50 and submission of supporting evidence???
This may seem a rather unusual situation.
I have one of my clients who is in all manner of trouble, both with HMRC and in some part, the DWP. There is no criminal involvement I hasten to add - just someone who decided to take both departments on single handed simply because he can!
Without going into the why’s and whatfor’s, he is a stubborn and difficult person to deal with!!
For the past three years he has been in the Support Group. He was initially given 0 points and due to countless arguments I feel that the DWP just gave in to him!!! There was and is some decent evidence available which has never been submitted to the DWP.
Following a recent renewal of his ESA, he was once again given 0 points - not surprisingly!!
He has now given me a problem that needs a definitive answer.
He has pointed out to me that the ESA50 or any of the notes that come with it, does not specifically state that any evidence MUST be sent back to ATOS with the ESA50.
The ESA50 actually states:
“If you have any medical reports from your doctor, consultant or health care professional, or any other information you wish us to see, please send them with this questionnaire.”
Taking the next step he points out that the ‘Medical Services’ handbook states that they expect evidence to be fothcoming in certain descriptors.
He rightly or wrongly believes and expects that when he is examined at a F2F assessment, the assessor should be proficient enough to prepare a report based entirely on their findings. It is not for the claimant to have to prove anything, it is for the DWP based on a professionally carried out assessment to disprove his claim with all of the assessment findings having be justified.
In my opinion he is living in ‘make believe world’.
My question - is there any requirement for the claimant to submit any evidence to either ATOS or the DWP other than the initial claim form and the ESA50?
His argument with the DWP is that the assessment is not in accord with the facts and that there are no justifications recorded (which is correct - it is simply a case of ’ my opinion is more accurate! - why?? - by the assessor when their opinion differs from what was presented to them by the claimant.
There’s no requirement for him to submit any additional evidence but (as I’m sure you realise) he’ll be cutting off his nose to spite his face if he doesn’t do so in support of the subsequent dispute. Whilst supporting evidence isn’t essential, without it the appeal will almost certainly not be revised at first stage. Client’s oral evidence should be accepted by FTT if not inprobable or contradictory but it would certainly strengthen his hand if he provides what he has to support his difficulties (especially as reading between the lines, he is the sort of client who could well wind up a tribunal at an oral hearing rather than helping himself).
There is a name that the courts use for people in repeated frivolous legal proceedings and that is vexatious litigant. I’m always reminded of that term when I hear of situations like the one you describe and they can be an adviser’s worst nightmare. The answer to your question is no but he doesn’t help his cause if he doesn’t. Neither does it matter whether you send evidence to the DWP or Atos. If you send it to Atos then Atos have a duty to forward it to the DWP. If they don’t he would have a justifiable complaint. He is right that the assessor should be proficient and produce a report based on the assessor’s findings but that is not contentious and says nothing new.
He is wrong that it’s up to the DWP to disprove his claim and that he doesn’t have to prove anything. The burden of proof doesn’t come into it. The decision maker has to make an evidenced based decision based on all the evidence in front of him and has ground to supersede the award by simply having the Atos report in his hand. Of course the DM must give some explanation when called upon to do so as to the weight he has given to the evidence and why. However, tribunals are rarely concerned with that. They will take a fresh look at the evidence plus any evidence submitted later and carry out their own assessment. His stubbornness is in danger of burying him.
I agree with the above two posts. Client is just making it worse for himself and potentially risks raising questions about his credibility by not cooperating. Needs to direct his energies into more effective tactics if he wants to get back at ATOS and DWP.
As an aside, I have experienced some trouble with ATOS not forwarding medical evidence submitted with ESA 50s onto DWP decision makers, also feedback from clients that some HCPs have not looked at supporting medical evidence during medical examinations (even evidence which is relevant to descriptors or exceptional circs). But then nothing awful about ATOS should be any surprise.
As an aside, I have experienced some trouble with ATOS not forwarding medical evidence submitted with ESA 50s onto DWP decision makers, also feedback from clients that some HCPs have not looked at supporting medical evidence during medical examinations (even evidence which is relevant to descriptors or exceptional circs). But then nothing awful about ATOS should be any surprise.
I have also found ATOS awful on this issue.
Because of that I now give an extra sheet to clients to use if the HCP ignores or refuses medical evidence.
This sheet is a copy of page 39 of Training & Development Revised WCA Handbook (version 3 Final !4/4/2011). with the following text highlighted from section 3.1.2.:
“At times the claimant may also bring additional evidence to the assessment. Any evidence bought by the claimant must be read and the report should make reference to the evidence that has been considered and justification provided if there is a conflict between the opinion of the HCP and the other medical evidence.”
Several clients have noted an improvement in the HCP’s attitude after this.
“Several clients have noted an improvement in the HCP’s attitude after this”.
I should hope so. I’ve lost count of the times clients have told me that the HCP wouldn’t even look at evidence they produced.