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

ESA50

Chris1
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Financial Inclusion, regenda.org.uk

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Total Posts: 1

Joined: 14 September 2015

Dear All

Ref: Case Law

I am writing on behalf of a client.

I have a client who has an upcoming employment and support allowance tribunal, the client suffers from mental ill-health and his condition has deteriorated since applying, he subsequently failed a medical, but the DWP has lost his ESA50 Questionnaire i.e. I didn’t help the client complete his ESA50 Questionnaire so I don’t have a copy, due to his mental health, I am struggling to ascertain his condition at the point of when he originally applied, and was going to use the ESA50 Questionnaire to ascertain what his condition was at the time of applying, allowing me to complete a submission and apply for medical evidence relevant to his condition, however the Tribunal Service who originally agreed to postpone the Tribunal, are now pressing ahead with the hearing even though they are aware we don’t have a copy of his ESA50 Questionnaire.

In light of the above, are you aware of any beneficial case law I could utilise, as I believe not having the ESA50 Questionnaire is detrimental to the client’s case.

May I thank you in advance for your time.

Brian JB
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Advisor - Wirral Welfare Rights Unit, Birkenhead

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The relevant state of health, and how it affects your client, is as it was at the date of the initial DWP decision that he does not have limited capapbility for work. That may be better, worse, or the same as at at the time of his original application for ESA. In some cases, there is a considerable lapse of time between the ESA50 and the DWP decision, so that the ESA50 has not accurately reflected the claimant’s condition at the relevant time.

You say that your client’s health has deteriorated since applying (for ESA?). If his health has deteriorated since the DWP’s decision on capability for work (i.e. the decision that you have appealed against, rather than the decision to award ESA at the start of the claim), the tribunal cannot take account of that deterioration (except to the extent that you can argue that the deterioration was caused by the decision and its consequences, which may show how fragile he was at the time of the DWP decision).

You could still try and obtain medical evidence relevant to his state of health at the time of the decision under appeal. I don’t think there is any point in trying to establish how he was when he originally applied for ESA, rather than at the date of decision on capability for work.

If he has detriorated since the DWP decision on capability for work, and you cannot establish how he was at the date of decision form talking to him, it may be a case of looking at what is recorded on the ESA85 (typical day, etc) and seeing if you can use that in your discussions with the client to see if he thinks they painted a reasonably accorate picture. If he cannot remember, I would have to say that the tribunal is likely to consider it to be the most reliable piece of contemporaneous evidence. The lack of the ESA50 isn’t going to lead to a tribunal allowing the appeal by default - it will have to decide for itself, by weighing up all avaiable evidence, wirten and oral, what the facts were at the relevan time

Chris1
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Financial Inclusion, regenda.org.uk

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Total Posts: 1

Joined: 14 September 2015

Thank you for the above.

I was just hoping that there might of been some supportive case law out there.

Really appreciated your time.

Chris

Dan_Manville
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Mental health & welfare rights service - Wolverhampton City Council

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If he’s deteriorated and you’ve got evidence of that have you notified the deterioration to JCP? Assuming he’s receiving the assessment rate pending the appeal then the award could be superseded if he now passes the WCA. If it were me I’d make sure DWP were consiodering the changed circumstances.

This is probably quite important in the wake of the new reg 30… Once the appeal’s heard and if it’s unsuccessful it’d be much more difficult to get ESA reinstated.