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

ESA appeal, evidence from previous medical

Jon (CANY)
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Welfare benefits - Craven CAB, North Yorkshire

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Client scored 18 points in 2012, then zero points in 2013.  There is no other evidence of an improvement. ESA appeal is with tribunal service.

The DWP put both ATOS assessments in the initial bundle. We have submitted that they have not identified a relevant change of circs from the first one (noting CE/829/2012). We have pointed out that the first exam was more detailed, and more directly addressed the statutory tests. The second one is vaguer, and is at odds with our client’s statements in the ESA50 and in the appeal.
(We have also cited CE/54/2014 as relevant to our client’s case, both for how it deals with mobilising, and the relevance of evidence leading to a DLA HR Mob award).

DWP have responded, to say that the findings of a previous assessment are not relevant, it is the claimant’s condition at the time of the decision that is in issue.

Is our argument not sound? If the previous ESA85 is irrelevant, then why did they choose to include it? Is it the case that the tribunal will likely give the newer assessment much more weight?

iut044
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Welfare Benefits Adviser, West Lancs Disability Helpline, Skelmersdale

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All the evidence can be taken into account, there are no admissibility rules for social security tribunals. 

How much weight is given to the older ESA85 is a very subjective decision.

Ben E Fitz
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The DWPs argument is ludicrous! If they accepted the earlier assessment to be reliable then they ARE arguing that the client’s condition has improved by the date of the second assessment. They need to provide evidence of the ways in which the alleged improvement has occurred. Therefore a comparison of the two ESA85s is a necessity to identify the supposed “improvements”.

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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“It’s a miracle judge.  Mr Smith’s legs have grown back.  Praise be!”

iut044
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Ben E Fitz - 24 September 2014 12:59 PM

The DWPs argument is ludicrous! If they accepted the earlier assessment to be reliable then they ARE arguing that the client’s condition has improved by the date of the second assessment. They need to provide evidence of the ways in which the alleged improvement has occurred. Therefore a comparison of the two ESA85s is a necessity to identify the supposed “improvements”.

Correct me If I am wrong but I thought in ESA cases, the department did not have to show evidence that the client’s condition had got worse (I knew they used to in Incapacity Benefit cases).

nevip
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iut044 - 24 September 2014 01:25 PM
Ben E Fitz - 24 September 2014 12:59 PM

The DWPs argument is ludicrous! If they accepted the earlier assessment to be reliable then they ARE arguing that the client’s condition has improved by the date of the second assessment. They need to provide evidence of the ways in which the alleged improvement has occurred. Therefore a comparison of the two ESA85s is a necessity to identify the supposed “improvements”.

Correct me If I am wrong but I thought in ESA cases, the department did not have to show evidence that the client’s condition had got worse (I knew they used to in Incapacity Benefit cases).

That’s only for making out the supersession ground.  The same was true for ICB.  But, where that has been a previoius assessment in the claimant’s favour and the claimant contends that there has been no improvement then the Department is under a duty to produce the previous report and offer some explanation as to why a different decision has been reached.

Do you mean better and not worse?

iut044
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nevip - 24 September 2014 01:31 PM
iut044 - 24 September 2014 01:25 PM
Ben E Fitz - 24 September 2014 12:59 PM

The DWPs argument is ludicrous! If they accepted the earlier assessment to be reliable then they ARE arguing that the client’s condition has improved by the date of the second assessment. They need to provide evidence of the ways in which the alleged improvement has occurred. Therefore a comparison of the two ESA85s is a necessity to identify the supposed “improvements”.

Correct me If I am wrong but I thought in ESA cases, the department did not have to show evidence that the client’s condition had got worse (I knew they used to in Incapacity Benefit cases).

That’s only for making out the supersession ground.  The same was true for ICB.  But, where that has been a previoius assessment in the claimant’s favour and the claimant contends that there has been no improvement then the Department is under a duty to produce the previous report and offer some explanation as to why a different decision has been reached.

Do you mean better and not worse?

Yes I mean better not worse. 

Is the new report in itself not an explanation of why the different decision has been made?

nevip
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No, it’s just another opinion.  The Department should offer an explanation as to why that opinion has been preferred.

Edmund Shepherd
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For clarity, a new medical report is grounds for superseding a LCW decision, but the DM must look at all relevant evidence, including old evidence. CIB/3985/2001 (DRH p314).

Jon (CANY)
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Thanks for all the helpful replies.

[Just to add insult to injury in this case: when the client asked them to reconsider, one of his arguments was that he had not got any better since the last assessment. In reply (by phone) they said that wouldn’t matter, because the test had changed in the meantime, it was now a test of mobilising rather than walking. This is presumably a stock line they trot out, which happens to be false in this case. The client had previously scored 18 points in 2012, which was after the “mobilising” test came in.]