Withdraw ESA claim or not?? Please advise!

Can anyone advise?

Have a client facing tribunal next week for ESA, WCA failed in 2009 - they completed ESA50 indicating they could do everything although had undergone major heart surgery in Feb 2009.

Medical evidence to date extrmely vague, tests normal, no definitive conclusions reached and going through the ESA descriptors we are struggling to find points as client responses indicate they don’t meet criteria but still wants to attend tribunal ?!

Have suggested JSA - consultant advises they cannot work but consider this refers only to original (extrmely physical) role not any work - client unwilling to do this.

Can they withdraw this current claim and then re-claim ESA under new condition (or existing one) as original WCA was in April 2009??

Sorry to be so vague but this case is proving to be rather difficult to support.

Many thanks

Liz

It sounds as though there might be an argument for Regulation 29, using the principles of Charlton (An IB Court of Appeal decision).
Although it didn’t go in favour of the appellant in that case, overall it’s a good decision
If the client’s experience and qualifications would only lend themselves to getting the sort of job that the consultant thinks would be risky, then despite scoring 0 points they should be accepted to have limited capability for work

http://www.bailii.org/ew/cases/EWCA/Civ/2009/42.html

Para 38 reads
“The answer to this submission lies in the purpose of Regulation 27(b), that is to assess risk at work. In order to determine whether there is any health risk at work or in the workplace it is necessary to make some assessment of the type of work for which the claimant is suitable. The doctor, the decision-maker and, if there is an appeal, the Tribunal, should be able to elicit sufficient information for that purpose. The extent to which it is necessary for a decision-maker to particularise the nature of the work a claimant might undertake is likely to depend upon the claimant’s background, experience and the type of disease or disablement in question. It is not possible and certainly not sensible to be more prescriptive. The most important consideration is to remember that the purpose of the enquiry is to assess risk to the claimant and to others arising from the work of which he is capable. No greater identification of the type of work is necessary other than that which is dictated by the need to assess risk arising from work or the workplace.

The correct approach has been identified by Deputy Commissioner Paines in CIB/360/2007:-

“17. The degree of detail in which [the consequences of a finding that the claimant is capable of work] will need to be thought through will depend on the circumstances of the case… A tribunal will have enough general knowledge about work, and can elicit enough information about a claimant’s background, to form a view on the range or types of work for which he is both suited as a matter of training or aptitude and which his disabilities do not render him incapable of performing. They will then need to decide whether, within that range, there is work that he could do without the degree of risk to health envisaged by regulation 27(b).
18. Regulation 27(b) requires one to start by identifying a disease or disablement; the next stage, it seems to me, is to consider the nature of any health risks posed by that disease or disablement in the context of workplaces that the claimant might find himself in, with a view to answering the question whether any such risk is substantial.”

And bear in mind the provisions in jobseeker’s allowance that a claimant with a disability is entitled to restrict his availability for work in the light of that disability, to the extent that it is reasonable. This applies both to the type of work and the number of hours (see JSA regs 13(3)).
I have met many unsuccessful IB appellants who were agreeably surprised to learn this, as they had always assumed that being found fit for work meant they had to go off and be manual labourers or industrial cleaners for 40 hours a week.