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Challenging the requirement to attend a WCA?
Can an ESA claimant challenge the decision that requires them to attend a WCA? My client thinks she should be treated as having LCW based on the written medical evidence that she has submitted alone.
She has already missed one WCA, and her reasons for that were accepted. She now needs to explain why she missed another WCA. I only became involved with her claim last week, and it seems that she disagrees with the requirement to have an assessment at all.
Unfortunately, I get the impression that she thought the WCA would go away if she managed to dodge it enough times…
Is it very unlikley that the DWP will change their mind about her needing to do a WCA?
Also, how difficult have you found it to get a WCA done in the claimant’s home? She’s not very flexible about the idea of going to a DWP assessment centre.
I actually think she could attend a WCA, but I just want to get an idea of other people’s experiences in this situation before I go back to her and lay out the options.
If you’ve any hope of getting the home visit you will need support from her GP.
She can’t directly challenge the need to attend for assessment, nor can she challenge the requirement that her capability for work is reassessed at this time however if the evidence is strong enough you can sometimes persuade them to do it on the papers rather than attending at a centre.
It’s not DWP’s call as to whether she attends for assessment or a Paper Based Assessment happens it’s Medical Services’ call.
Have you had sight of the evidence she’s submitted?
ATOS appear very reluctant to carry out home assessments in this area, stating the risk to their staff’s health and safety. I imagine compelling reasons would be necessary to alter this stance. (e.g Strong evidence of why client is unable to attend, risk to health should she be required to attend, etc).
From what you have said,I would be attempting to explain to the client that the DWP are within their rights to require her to be assessed, and that should she be seen to be un-cooperative she risks an automatic decision of not having LCW.
No, I haven’t seen the evidence that she submitted yet. She has suffered from M.E. for years and switched from NHS treatment to a herbalist a couple of years ago because she felt the NHS treatment had no effect. Initially, the DWP rejected the herbalist’s reports as medical evidence but then changed their mind.
She is adamant that she cannot travel to an assessment centre due to the physical and mental strain that it would place on her. This includes doing the return journey in a taxi.
Do I contact Medical Services through the usual DWP channels? I might ask them to reconsider making a decision based on the written medical evidence, and if they say no request a home assessment.
Thanks for all the input. I haven’t dealt with a case like this before because clients are usually willing to attend the WCA, not enthusiastically, but at least they agree to go.
Is it too much of a stretch to argue that someone shouldn’t have to do a WCA because even if they fail it they are going to try and rely on Regulation 29 of ESA Regs 2008/Reg 25 of ESA Regs 2013 which says they should be treated as having LCW?
If you’re confident that a claimant will satisfy Reg 29/25, it makes the WCA seem a bit pointless, and a waste of DWP money…
I did say it was a bit of a stretch but I’d be interested to hear your comments in any case :)
Has the assessment been scheduled yet? If not, you might have time to request the evidence the provider (Atos?) has. You could use this to form an opinion on her capability for work. If it’s strong, push for a paper assessment. If it’s not strong, do your best to explain your client’s position in the context of the rules. Medical evidence for an out of centre visit is crucial. If health and safety is a concern, would the provider be willing to attend elsewhere? Council office? GP surgery?
Good luck, it looks like you have a challenging development opportunity on your hands.
At this stage, I’m helping here to explain why she missed the WCA appointment (the second one she has missed), but she also wants to ask for a paper assessment, and, as a last resort, a home assessment.
I will ask her to consider an assessment at a local venue, such as a GP surgery; maybe she’ll be more willing to do that.
I expect she’ll end up having to attend a DWP centre, but she’s quite stubborn, so I feel like I need to show that I’ve at least tried to get her what she wants, even if it’s not likely to end up happening!
It’s an awkward situation, but I would explain to the client that she has certain responsibilities in respect to her benefits. If she wishes to receive ESA she has to accept that the WCA is a necessity, and she is actually contributing to her own problems by being unreasonable in her attitude.
I am puzzled as to why she is so resistant to the idea of an assessment, to the extent that even a home visit is a “last resort”.
At this stage, I’m helping here to explain why she missed the WCA appointment (the second one she has missed), but she also wants to ask for a paper assessment, and, as a last resort, a home assessment.
I will ask her to consider an assessment at a local venue, such as a GP surgery; maybe she’ll be more willing to do that.
I expect she’ll end up having to attend a DWP centre, but she’s quite stubborn, so I feel like I need to show that I’ve at least tried to get her what she wants, even if it’s not likely to end up happening!
I’ve tried asking ATOS to conduct assessments at third party venues and they’ve outright refused; it’s an assessment centre or the client’s home; or at least it was last year.
some time ago we had one case assessed at a GP surgery it was very unusual as everyone beleived client had been put in the wrong group (WRG) but the appeal didnt come round fast enough for the next assessment
Client had significantly worsened and the GP got very involved
Ive had no luck ever getting assessments at clients homes however many strings pulled , i just dont think it is done willingly
I’m with Ben on this one. I think you’re just going to have to lay it on the line with her (I would follow up your advice in writing too) and leave the ball in her court. Unless the evidence is very strong and/or she has support from her surgery I honestly don’t think you’re realistically going to persuade ATOS to undertake the WCA on scrutiny or arrange a HV/assessment at local surgery. I fear she is cutting off her nose to spite her face and clients of that sort (forgive me if I am making generalisations here) are often the first to complain about the advice/service they’ve received (hence I would make sure there’s a paper trail of what she has been told).
I’m with Ben on this one. I think you’re just going to have to lay it on the line with her (I would follow up your advice in writing too) and leave the ball in her court.
I would go further, though I’d reiterate your advice regarding the paper trail.
I expect she’ll end up having to attend a DWP centre, but she’s quite stubborn, so I feel like I need to show that I’ve at least tried to get her what she wants, even if it’s not likely to end up happening!
We are advice workers, not medieval scribes, simply there to overcome a client’s literacy problems or to help couch their gripes with the authorities in legalese. As such, we are under no obligation to raise particular arguments with the DWP or with tribunals simply because a client wants us to, but which we ourselves believe have no merit. In fact, we do ourselves and, more importantly, our clients a disservice when we acceed to this sort of unreasonable demand. This is particularly so with tribunals where, to sometimes quite a large extent, we might have to trade on our reputations - it’s the boy who cried wolf scenario, but with our other clients who have a genuine case (rather than ourselves) paying the price. And while geep isn’t at tribunal yet, this is clearly a ‘good cause’ disallowance and appeal in the making.
geep - you’ve already said that you believe she could probably get to a medical. I assume you have sound reasons for this belief and you could justify it if need be. That being so, I would advise her that I thought she was able to attend, give her my reasons and state frankly that I was not prepared to argue for a home assessment unless she provided either a) better and more credible reasons for being unable to get to a medical or b) evidence from her GP confirming the fact that she could not possibly get to athe assessment. And make it clear it would be up to her to approach the GP for this evidence, not me.
I’m with Ben on this one. I think you’re just going to have to lay it on the line with her (I would follow up your advice in writing too) and leave the ball in her court.
I would go further, though I’d reiterate your advice regarding the paper trail.
I expect she’ll end up having to attend a DWP centre, but she’s quite stubborn, so I feel like I need to show that I’ve at least tried to get her what she wants, even if it’s not likely to end up happening!
We are advice workers, not medieval scribes, simply there to overcome a client’s literacy problems or to help couch their gripes with the authorities in legalese. As such, we are under no obligation to raise particular arguments with the DWP or with tribunals simply because a client wants us to, but which we ourselves believe have no merit. In fact, we do ourselves and, more importantly, our clients a disservice when we acceed to this sort of unreasonable demand. This is particularly so with tribunals where, to sometimes quite a large extent, we might have to trade on our reputations - it’s the boy who cried wolf scenario, but with our other clients who have a genuine case (rather than ourselves) paying the price. And while geep isn’t at tribunal yet, this is clearly a ‘good cause’ disallowance and appeal in the making.
geep - you’ve already said that you believe she could probably get to a medical. I assume you have sound reasons for this belief and you could justify it if need be. That being so, I would advise her that I thought she was able to attend, give her my reasons and state frankly that I was not prepared to argue for a home assessment unless she provided either a) better and more credible reasons for being unable to get to a medical or b) evidence from her GP confirming the fact that she could not possibly get to athe assessment. And make it clear it would be up to her to approach the GP for this evidence, not me.
This, in full.
Massive difference between an experience like travel being stressful and it being detrimental to health.
Tell her there’s a good chance the HCP will be a herbalist.
My GP surgery, inevitably funded by a larger organisation that owns several GP surgeries (but the NHS is not yet privatised I hear you say… er…) recently lost its practice nurse of many years. The person in question had to return to train their own replacement (on the job???) on some things not least because it was flu jab season and the person had not administered a single jab!!! I don’t know whether this was over a period or a one off as my comments are based only on a visit to the surgery which coincided with all of this going on.
Given the (relatively) low level of knowledge you can imagine my surprise to hear the conversation about the fact that the new person was expecting to be employed by a certain organisation doing HCP work. Putting aside that I’m not sure I should have heard that at all in a waiting area and that many patients of the surgery could have some serious concerns about a nurse with that specific other role… you’re learning how to find a vein but you’re absolutely okay doing an in depth mental health assessment?
Race to the bottom anyone?
You can’t expect herbalists to know how to operate a syringe!