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ESA Missed Appointment-Good Cause-receive assessment rate?
Hi all,
Have a client who I have submitted a mandatory reconsideration for; challenging the decision that they do not have good cause for missing their medical assessment.
When it comes to proving good cause, can a claimant receive the assessment rate of ESA at the appeal stage as is the case with challenging entitlement after the medical assessment? Or does a claimant have to wait until they receive another appointment before they can receive anything?
Many Thanks.
In a nutshell… no.
If they have refused to accept good cause then there will not be a further appointment as the resulting deemed capacity for work kills the claim dead.
He’d need to make a new claim that may be waiting a long time for teh assessment to be conducted. There are numerous tales of people waiting far in excess of the 26 weeks during which they are prevented as being treated as having LCW by virtue of a med3.
If they have no other income they need to think about signing on rather than submitting a new claim.
What was the reason for the Failure To Attend?
I had a client in this situation and it was only resolved recently.
Client missed WCA in October 2013, she does not open her post so how would she have known to go?
She then had a visit from JC+ asking her why she missed the appointment but she thought the visit was the WCA so when her claim was cancelled in late November she was somewhat shocked.
MR put in and refused. Appeal then put in to HMCTS.
No money was paid at all during this time.
After 6 months we made a new claim for ESA and the client was still not paid (even though she got a phone call to say they would start paying her from the next payment run), she was given a WCA in July 2014 but then did not score any points so we had to ask for a MR on this.
Just after we wrote the MR we had the appeal date through for the original failure to attend.
I did a submission on her failure to attend and her medical condition - the Tribunal Judge only worried about the failure to attend. She was found to have good cause for not attending but at that point I wasn’t sure (and neither was the Judge) about how much the client would be paid and from what period and at what rate.
A few days later she was sent a letter awarding her WRAG from November 2013 (as per her appeal, although the judge had not found her unfit to work but rather that she had good cause not to attend) and then also got a letter to confirm her MR had been looked at and they had awarded her WRAG from July 2014 (WCA date).
The client has received £3k+ but she had no income from ESA from November 2013 until August 2014.
Luckily she had 1 child in education so did get CTC and CB but it was a struggle for her.
Added: The client’s brother thought she should claim JSA so she had some income, I gave the client the option but as she does not open her post, cannot operate a computer, cannot function even in her home it seemed rather unlikely she would be able to sign on and look for work.
So they knew about the mental health probs, did the safeguarding visit but still refused to accept good cause for failure to attend?
In these situations there are arguable breaches of the Equality Act and a letter before action from a contracted solicitor makes DWP take notice and rectify things quite quickly in my experience…
Thanks for your replies.
Unfortunately the reason for not attending is similar to your client’s WBrame; only she opened the letter but assumed that it was for her PIP assessment which had been rearranged due to a cancellation. So she opened the letter but did not recognise that it was for ESA rather than her PIP.
There are mental health issues that may go some way to providing good cause.
Good cause can be challenged though can’t it? So if that is upheld, surely a new appointment would be made.
Just wandering what to advise in the meantime. As missing the appointment kills the claim, surely claiming JSA would simply compound that decision. So if she wants to challenge the decision that she does not have good cause, must she go all that time without money in order to establish a limited capability to work?
Good cause can be challenged though can’t it? So if that is upheld, surely a new appointment would be made.
Just wandering what to advise in the meantime. As missing the appointment kills the claim, surely claiming JSA would simply compound that decision. So if she wants to challenge the decision that she does not have good cause, must she go all that time without money in order to establish a limited capability to work?
Good cause for FTA is appealable yes but in the interim it’s a new claim for ESA if there’s any sign of deterioration or JSA. JSA shouldn’t prejudice the determination of whether she had good cause for the FTA.
Thanks a lot for the info