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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Medical assessment not acted on

SamW
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Hi there was wondering if people had any advice on this situation. Client attended a medical assessment in December. Nothing subsequently heard. In May I rang DWP and the call centre adviser said that the assessment had awarded less than 15 points and that client would have a negative decision soon. However we still have not heard anything. Client is submitting sick notes and continues to be paid ESA at the assessment rate.

Client does not want me to chase this up as she says she is managing on the assessment rate (the large majority of her income is Child Tax Credits).

My initial advice to client was that the medical assessment result was not a decision and so client should not be liable for any overpayment - DWP can only treat her as not being entitled to ESA from the point they make the full decision on her LCW. I advised that as long as she kept on sending in sick notes she was entitled to ESA pending any contrary WCA decision by the DWP.

At that point I thought the DWP were just running behind and that in the end they would catch up with themselves. However we are now 8 months on from when the medical assessment was held and it is beginning to look like she has fallen through the cracks completely. I am getting a little more cautious about the situation as the period in question grows longer and the potential overpayment grows larger, especially as I imagine my phone call in May will be on the system and so it will be clear that both myself and the client were aware from that point that the outcome of the medical assessment had been unfavourable. 

Was my original advice correct? Is a claimant entitled to continue sending in medical certificates and receiving ESA even when they know that a medical assessment outcome has been unfavourable and that the only reason their claim is ongoing is that the DWP have failed to confirm that outcome with a proper decision?

For what it is worth I think client has good case in terms of whether she should actually have LCW - if I was in her position I’d be chasing the decision in order to put in a MR/appeal and get the full rate of ESA. Client does not agree though and does not want to rock the boat.

Thanks in advance for any advice!

past caring
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Information given by a call centre officer is not necessarily reliable or accurate - I can think of quite a few instances where it has turned out not to be.

You cannot know if a decision had actually been made at the time of the phone call - even if it were certain (and it isn’t) that the assessment awarded less than 15 points, this would not preclude a DM deciding that the claimant had LCFW under reg. 29. Though of course, had that actually happened, she should now be receiving the additional WRAC or SC as well as the basic rate of ESA.

I think the likeliest scenario is that no decision has been made. And if your client has not been issued with a decision and is still being paid ESA, the only logical conclusion for her to draw is that she remains entitled to ESA. This is further supported by there being no contact from the relevant benefit centre in response to her (supposedly unnecessary) Med3s. In fact, it would be interesting to know whether she’s received any reminders about Med3s from the date of the medical down to date - if she has had reminders then it’s clear the benefit centre are expecting her to provide the Med3s and that no decision has been made. She should hang on to the reminder letters if she’s had any.

In any event, on what basis would the DWP be able to argue recoverability of an overpayment? What material fact or change of circumstances has your client failed to disclose?

[ Edited: 31 Aug 2016 at 12:09 pm by past caring ]
SamW
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past caring - 31 August 2016 12:05 PM

In any event, on what basis would the DWP be able to argue recoverability of an overpayment? What material fact or change of circumstances has your client failed to disclose?

That was my line of thinking re overpayments.

I’m just starting to get jumpy as it looks like it could drag on for a long time and as confident as I feel about the analysis I’m a bit nervous of it eventually being tested on something like a 4 year overpayment :/

1964
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If it is any help/reassurance to you Sam, I’ve come across the same scenario several times. In one case, it turned out that a negative WCA decision had been made several years previously (I had contacted DWP on client’s behalf to query why he was still apparently in the assessment phase/hadn’t yet been asked to attend WCA after 4 years) but for some reason hadn’t been acted upon/issued and in the other case a negative decision had been made/issued to client (but DWP had just continued to pay him as though nothing had happened). Again, we picked up on in several years down the line.

In neither scenario was there any overpayment issue. I suppose the DWP could have tried to make an argument in relation to the second case (being as they had actually issued a decision- or allegedly had anyway as the client had no recollection of having received it) but I would have certainly been arguing official error had they done so.

CDV Adviser
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On a side note, does anyone know how long ESA decisions are taking now? I have a client that has been in receipt of ESA(C), no entitlement to IR,  since November last year. She was sent an ESA50 in June and returned it within a week but hasn’t heard anything yet and hasn’t been invited to attend an assessment.

Benny Fitzpatrick
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Completed ESA50 for one of my clients back on April 27th. She has face to face assessment next Monday. No idea how long decision will take following assessment. Other clients are reporting similar delays.

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Thanks Benny. I’m sure they’ll get round to it before her conts run out.

1964
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Wouldn’t bank on it Phil

We’ve a fair few clients still waiting after a year.

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1964 - 02 September 2016 10:47 AM

Wouldn’t bank on it Phil

We’ve a fair few clients still waiting after a year.

Seems a ridiculous situation. If she was found fit for work at 13 weeks they could have saved themselves nearly £3K. And if a decision hasn’t been made by 12 months, her benefit will stop even though she may have been allocated to the Support group. I’m pretty sure there must be SLA’s in place for this.

ClairemHodgson
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back down the JR route, failure unreasonably to make a decision?

Dan_Manville
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Phil R - 02 September 2016 02:03 PM
1964 - 02 September 2016 10:47 AM

Wouldn’t bank on it Phil

We’ve a fair few clients still waiting after a year.

. I’m pretty sure there must be SLA’s in place for this.

Considering the morass that CHDA inherited I wouldn’t be surprised if there aren’t. I looked at the figures when they took up the contract and pretty much every ESA claimant was overdue for review or first assessment

We’re in much the same boat as 1964; lots of time expired contributory claims that haven’t been assessed at 365 days.

The one saving grace is that CHDA are happy to do paper based assessments if we can give them enough medical evidence; it helps get the backlog down.

generalistadviser29
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SamW - 31 August 2016 11:41 AM

For what it is worth I think client has good case in terms of whether she should actually have LCW - if I was in her position I’d be chasing the decision in order to put in a MR/appeal and get the full rate of ESA. Client does not agree though and does not want to rock the boat.

Thanks in advance for any advice!

Not sure if this is correct(from an advice perspective)- but I think the ball is in her court as it is ultimately her decision although I agree with you that I would chase it up.

I had a similar client in the past who was an alcoholic ex forces. Unlike your client though he had actually missed two WCA and was still being paid assessment rate. I was surprised the DWP didn’t stop his money- but the adviser I spoke to said that as there was a note on the system of his condition that they just carried on paying assessment rate. He wanted me to chase this up though. Also he interestingly had never completed an ESA 50 form neither. Although he was quite happy about not having had to go to the job centre/work programme during this time.

Also I don’t think this could be counted as an overpayment as she is still waiting the decision from ESA and this is surely not her fault.

 

[ Edited: 2 Sep 2016 at 03:10 pm by generalistadviser29 ]
Jac
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ESA completed in March - still waiting. Phoned today to DWP. No timescale. Same case also has IS10 outstanding for 3 months.

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Has anyone tried taking this up with their MP? Without some form of SLA, or at least more adverse publicity, the DWP can just drag these out for as long as they want.