Having Children.

I represented a client at a tribunal for ESA this week. Client suffers from mental health illness as well as physical health problems.  His wife works part-time - leaving for work at 3.30 pm, at which stage he will keep an eye on their five children aged between 3 and 14.  The legally qualified member and medically qualified member both continually referred to the fact that he had to supervise the children and that this indicated he could not meet requirements of any of the mental health activities.  They are going to write out with the decision, and I am 100% certain it will be disallowed.  Can anyone provide any idea on how we can challenge this, can it be challenged under Human Rights legislation. 

Thanks very much.

Siobhan

What are the mental health conditions, and how do they affect him?

He is suffering from back pain, has lump on right kidney (having biopsies every 6 months) and depression.  At previous WCA put into support group.  On new ESA50, he indicated difficulties with Activities 1, 2, 13, 15, and 16.

Thanks very much.

i think a human rights based challenge is unlikely to be the way to go.

the fact he looks after the children could be relevant if it indicates certain abilities or skills that are relevant to the wca. The tribunal may well have jumped on this and the client not got the best of hearings but i think the argument will be looking for holes in how they transferred the childcare to the wca test, if they missed other evidence etc

Of course a bare conclusion that no mental health descriptors could be satisfied simply because he supervises children would be wrong in law.  The tribunal would have to make proper findings of fact on each of the descriptors in issue.  And yes, I agree with Steven that a human rights challenge would be unlikely to succeed.

Previous WCA paperwork would be helpful if you can get hold of it, for reasons he was placed in the support group. Also to see if HCP has identified any changes in condition (or not) since last assessment to justify such a different outcome. Was this information available to the decision maker or Tribunal?