Failure to return ESA50-Severe Mental Health issue.

My client is currently appealing disallowance of ESA following failure to return an ESA50.

Client has severe paranoid psychosis (hears voices/feels he is constantly under observation and judgement/avoids contact with all but a very small number of friends and family/is very suspicious of strangers and authority figures), is illiterate, and is prone to lengthy periods of being incommunicado. He has a long history of failures to engage with MH services, DWP etc.

My argument for appeal is that his MH issues constitute “good cause” for failure to return the ESA50.

The DWP casepapers show a 10 year history of failure to return forms, attend appointments etc. In this particular case they state that a “safeguarding visit” was considered but rejected when they didn’t receive the ESA50.

My question is: Given the case history, and the knowledge that Cl has severe MH issues, can I argue that DWP have failed in their responsibility to the client under the Equalities Act (or any other legislation) by failing to carry out the safeguarding visit? Also, would it be worth asking for a Direction from the Tribunal that DWP attend the hearing to explain why they decided not to carry out the visit?

Hello Benny

I’m surprised this is an issue.  I very rarely get these problems any more.  Usually they would not cause a fuss about this and problems would only start to present themselves after failure to attend a WCA.

Here’s the DWP guidance on the issue:
“ESA50 not returned – Mental Health Flag Set
183. If the mental health flag has been set when the Q referral was made, the MSRS system will automatically identify any mental health cases and the cases will be referred to a Health Care Professional and the WCA referral action will continue within the Health Assessment Advisory Service.”
See WCA Outcomes chapter in thread here: http://www.rightsnet.org.uk/forums/viewthread/9141/

Doesn’t sound like this has been followed so worth complaining and escalating the complaint up to ICE.  No harm in asking for a direction, could be interesting to see what they say.

edit: I have tried to raise failure to safeguard as a discrimination issue in the past and been put off. If anyone else has any more luck than me then I’d be very interested to hear about it.

Is this a migration case Benny?

Some of the last migration cases, especially from SDA don’t have enough information to tell whether the mental health flag should be set. Around these parts if I rang JCP, told them there were mental health issues, then I’d expect the award to swing back into payment. If not then, as Owen says, complaint is likely to yield a swifter resolution than appealing although you’d keep the appeal rolling to cover your back.

In answer to your question, regarding the Equalities issues; the damages are likely to be limited to 3 grand which causes problems obtaining Legal Aid, however, if you want to discuss it (it’s something I’ve done a few times with varying degrees of success) then inbox me your number or email address and we’ll have us a wee chat.

In answer to Dan’s question, it’s not a migration case. Client had an award of ESA (Support) for the last 2 years which came up for review. Unfortunately, during the intervening period he had moved LA area, and the intensive support he had received at his old address from MH services was not continued following his move to Manchester. When he was referred to us he had been without even a GP for over 9 months, was not taking any medication and was surviving on PIP alone (ERDL/SRM). We had to take him to a GP surgery to sign up in addition to dealing with the benefit issues, which was not easy as he was very resistant to engaging with perceived “authority”. Thankfully he is now under the local MH team and back on his medication. Only the ESA issue to sort out. He is currently claiming JSA with a 13 week suspension of conditionality, but I dread the inevitable sanctions should the appeal take us beyond 13 weeks.

I have not yet discussed the equalities issue with the client or his support team. I was merely considering it as a possible option. I may forward the matter as a formal complaint via the local MP, (with a request for an ex-gratia payment perhaps.)

Benny Fitzpatrick - 08 September 2016 08:37 AM

..He is currently claiming JSA with a 13 week suspension of conditionality, but I dread the inevitable sanctions should the appeal take us beyond 13 weeks.

Reg 30(1) ESA Regs 2008 provides that a claimant is to be treated as having LCW if the conditions in para (2) are met.

Para 2(a) requires a fit note or equivalent evidence of LCW

Para 2(b) provides as follows:

(b) in relation to the claimant’s entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, it has not been determined–

(i) in the last determination preceding the date of claim for an employment and support allowance, that the claimant does not have limited capability for work; or

(ii) within the 6 months preceding the date of claim for an employment and support allowance, that the claimant is to be treated as not having limited capability for work under regulation 22 or 23,

unless paragraph (4) applies

For present purposes the relevant part of para (4) is this:

(c) in the case of a claimant who was treated as not having limited capability for work under regulation 22 (failure to provide information), the claimant has since provided the information requested under that regulation.

I would complete and submit a paper ESA1 and attach a completed ESA50 to it, if necessary asking the Dept to forward the latter to medical services.  Para 4(c) above doesn’t say that the person has to wait until the DWP request an ESA50 in respect of the new claim.  On the contrary, it appears to be referring to the ESA50 that was previously requested and the failure to provide which caused the old ESA award to end.  Consequently, once his new ESA50 and sick note go in, he’d appear to satisfy para (2)(a) and be excused from having to satisfy (2)(b) on account of satisfying (4)(c) .  Cannot see why he’d not then be paid ESA immediately pending his good cause appeal.

Thanks Tom! May come in handy.