What actually stops tribunals indicating time limits before re-assessment in ESA cases?

Probably being really thick here.

When an assesment is undertaken by ATOS it indicates the applicable descriptors (or not) and then there is a section that indicates the client should be re-assessed in e.g. 3 months, 6 months etc. In reality is this not part of the decision?

Hence why can’t tribunals make decisions in terms of when re-assessment should take place? Is it in the regulations? Can someone point me to them?

Thanks

The tribunal are only concerned with the decision by legislation.

Any reassssment date by HCP or whomever is just guidance.

Legislation states no reassessment within 3months.

In my experience tribunals may sometimes make a recommendation that there be no early reassessment, in conditions where no improvement is foreseeable (and they think the DWP is just being silly), but it carries no weight at all.

There was a previous discussion regarding this issue, which is serious.

The time for re-assessment is decided by Atos but since it is not an issue in the formal decision it cannot be appealed. The result is that Atos has the power to take a decision which cannot be scrutinised by the Decision Maker or challenged by the claimant.

This appears to be presenting particular problems with IB migration appeals where Atos has recommended the claimant has LCfW on ‘scrutiny’. The claimant successfully appeals for LCfWRA and is placed in the ‘support group’. DWP/Atos appear to have no process for addressing the previous Atos advice on re-referral period in the light of the tribunal decision - the claimant is therefore sent a new ESA50 within weeks of the tribunal and no amount of pressure will persuad DWP that the original Atos recommendation is no longer appropriate. Even if a copy of the tribunal decision is enclosed with the ESA50 the claimant may still be called for a WCA!

I’m with Sunil on this one, is there actually any legislation that says that a Tribunal can’t say ‘we award Mr X ESA in the WRAG from date a to date b’

I think that ATOs’ opinion of when the reassment should take place is a bit of a red herring, it only provides guidance for the much later and separate DWP decision that someone should be re assessed, it can’t be seen as decision in its own right and doesn’t form part of the DWP decision refusing ESA. I don’t know if the decsion to ask someone to complete an ESA 50 and attend a medical carries any appeal rights.

(In fact taken logically the assertion by ATOS that somone ‘should be able to return to work within the next six months’ is actually evidence that at the time they attended the medical they were not fit to work,if they were found not to have LCW why wouldn’t ATOS say that they are fit to return to work immediately?)

The SofS can require information on any claim for any benefit at any time (as long as the request is reasonable). ESA Reg 21 prescibes what that info. can include in respect of the WCA (rather than issues of say income or capital). An award of ESA is indefinite. The SofS has discresion over when he next requires info for a WCA. In practice this is done on the basis of the Atos recommendation on re-referral. A tribunal has no jurisdication over this point - all it can do (for what its worth) is express an opinion or recommendation. The only way to challenge the re-referral date which triggers the request for information (usually by issuing a new ESA50) would be by judicial review.

True, there is nothing in the regulations which stops tribunals making such recommendations.  Equally, there is nothing in the regulations that grants them a power to make them either.  They might wish to suggest them but they know that any suggestion, as Ariadne says, carries no weight.  Furthermore, any recommendations would only run up against reg 19(7) and (8) which allows the DWP to re-assess after a further three months of a determination, or sooner, to see if there has been a change of circ’s.

I think I’ve got a letter from Chris Grayling somewhere to the effect that tribunals can give advice about the prognosis. But of course it wouldn’t be binding and the the re-assessment cycle seems to have a life of its own anyway. Letter was in rsponse to ‘double handling’  query ie. get seen by doctor (usually) at Atos, then seen by doctor at tribunal, then re-assed by Atos, so what’s the point?

However, we now know that the tribunals, the GPs and all of us lot have ‘ingrained attitudes’, so now we know the real reason!

What actually stops tribunals….

deciding that a WCA re-assessment is not appropriate despite the presence of a new ESA85, the fact that 3 months have elapsed since the last assessment and a DM has actually chosen to make a new Reg 19(2) determination?

Reg 19(7) provides that the SoS “may” re-assess, not “must”, if one of the conditions in 19(8) is satisfied.  The tribunal can make any decision that was legally open to a DM at the date of the decision under appeal - R(IB) 2/04. 

Reg 6(2)(r)(i) Decisions and Appeals Regs presupposes that a DM will make a Reg 19(2) determination following receipt of a new medical report, otherwise the DM could win every appeal by merely showing that he’d physically “received” a new medical report.  No WCA determination = no valid supersession. 

But it seems a tribunal is free to exercise the discretion (“may”) in Reg 19(7) differently to the DM.

The commentary to section 12(2) SSA (see page 223 of Volume 3, 2011/12) discusses when the exercise of a discretion is non-justiciable. Although I haven’t had the chance to read any of the caselaw referred to there, it appears that it would be within the tribunal’s power to exercise the discretion under Reg 19(7) so as to refuse to make a new re-assessment.  R(H) 1/08 would in particular appear to support that view (again, i haven’t read it). 

If that’s correct, it would allow us to submit as a preliminary issue that there should not have been a new determination because the person had been re-assessed too soon (or too often), irrespective of the result of the new ATOS report.  If the tribunal agreed, no determiantion = no valid supersession = appeal allowed.  Of course, the tribunal might look at the new ESA85 and decide that it was right of the DM to re-assess without necessarily agreeing with the substance (ie the points score) of his decision.

Had a brief look at the caselaw mentioned in my last post.  Sadly, it looks like the discretion a DM has in Reg 19(7) is probably non-justiciable.  Therefore, challengeable on judicial review grounds only.  My excuse for not checking before posting is one which admittedly wouldn’t go down well at tribunal: I was watching the match. Sorry.

I attended an ESA tribunal this week and the judge told me that the tribunals have recently been given new powers to recommend the time scale for reassessment, with the maximum being 24 months.

Be interested to where these new powers come from!

I attended a tribunal on Friday where on the new style decsion notice the tribunal printed a recomendation that the client should not be re assessed for 24 months….......I am keeping my fingers crossed !

Yes, I got one on Wednesday for 12 months.  Judge and I agreed though that there was still no statutory power to do this, so advisory only.  We shall wait and see whether the DWP play ball or put a knife through it.

I knew this thread existed somewhere, I was looking for it last week. My ESA tribunal last week gave a 24 month before reassessment recommendation too.

It’s only a recommendation, so I guess there’s still the chance they’ll completely ignore it, but it’s no bad thing.