ESA FT decision as evidence for PIP?

Hello all,

Apologies if this has been covered somewhere on Rightsnet before.  I wanted to know to what extent people may have had success with using First tier tribunal decisions on ESA to help with PIP appeals, for example:-

1. Client with cognitive impairment
DWP said no entitlement to ESA.  FT deemed entitlement to ESA on the basis of reg 35 (safety) also awarding points for learning tasks, initiating and completing tasks, dealing with other people.

I have argued that this is applicable evidence for his PIP claim (DWP have refused) verifying that his cognitive difficulties are affecting his everyday life, which is consistent with chosen daily living and mobility activities he is reporting, and I have explained how, with particular reference to the safety aspects. DWP are saying there is no relevance at all (I quote):-

‘ESA is a different benefit which assesses fitness to work; this factor isn’t relevant to the PIP qualifying criteria.  Entitlement to ESA brings no entitlement to PIP, which is assessed separately and under different criteria.’

2. Client with severe mobility difficulties

Was awarded 15 points on descriptor 1 (schedules 2 and 3) of the ESA regs at FT appeal, as well as reg 35. DWP have not even acknowledged this information in their appeal response as well as the specialist medical evidence saying he experiences difficulty walking more than 10 meters.  PIP assessor only saw him walk 20 m into the assessment room with an aid.  Yet DWP have awarded 4 points on the basis of being able to walk 50 -200 meters.  I know there is a difference between being able to mobilise (ESA) and to ‘walk’ (PIP) however if you could only be deemed to mobilise (using a wheelchair for example)  up to 50 meters, you cannot then be expected to be able to walk (harder?) up to 200m surely?

Coincidentally the client gets highest rate of PIP for daily living and the tribunal quoted this as evidence in their ESA decision.

Is don’t suppose there is any case law or otherwise helpful reference info on this point?  Is it just a matter of pointing out the inconsistencies to the judge at the hearing?  And will they accept there are relevant similarities between ESA and PIP?  Or to put another way - are judges on board with this?

In solidarity,

EKS

I love the irony of DWP trying to argue they’re two different benefits despite having spent years using ESA for DLA and vice verse but in my experience your mileage may vary. Tribunals are very much on board with the idea they’re two different benefits but there are still some mavericks who would let your argument through. Your argument needs to be very specific but, at the end of the day, the ESA outcome/report is just one more piece of evidence to be weighted and some tribunals will refuse to weigh at all and those who will often weigh from the perspective that we as reps. have a nerve challenging the quality of ESA reports and decisions on the one hand and then, on the other…

FWIW I’ve had it go both ways.

I represented at a PIP tribunal yesterday.  The client is on ESA, and has been for many years.  The Judge asked me if I had any evidence from his ESA claim and advised me ‘for future reference’ that it is really useful to have all the details of the ESA award and where points were scored in PIP appeals.  This is after years of Judges telling me that the decision and evidence from one benefit is not relevant to an appeal for another.  Oh well!

Yup, as I said, it can go both ways. I do feel that one aspect of this is that the medical professionals on an appeal panel are often loathe to fly in the face of what are clearly inept reports from fellow medical professionals. Some judges may feel that an ESA report which contradicts a PIP report in a good way can be persuasive not just for the tribunal as a whole but specifically for the medical professional.

I have had one where the medical professional on the PIP panel had done the ESA report some time back. The PIP report painted a picture of health. The ESA report did not. That was “interesting”. 😊

Many thanks both for getting back to me so quickly and for your insights.

Remember evidence is evidence the tribunal has to look at everything , so it is better to put it in and let the Judge decide to accept or reject it, if you leave it out it is by default automatically rejected.