new style ESA appeal where the decision is a bit of a mess

be interested in opinions on this.

client claims new style ESA and is found to have LCFW. appeals to ask for LCFWRA.

submission bundle arrives.

the client was actually awarded 6 points and yet they found him to have LCFW…..no other reason given such as exceptional circumstances etc…..mandatory recon decision has ticked the box for receiving certain treatment….but the client wasnt.

my intention for the appeal would have been to argue exceptional circs due to significant risk. if the tribunal agrees with this then he will be found to gave LCFWRA anyway so the original mess doesnt really matter all that much (I think anyway)....but what if they dont?

usual stuff would be tribunal need not consider stuff thats not in dispute, but I am wondering what they are likely to or could do here. way I see it they could:

1. remake the full decision and decide if the client has LCFW as well.
2. ignore it and just deal with the LCFWRA issue
3. deal with the LCFWRA issue and pass it back to the DWP to look at the LCFW mess?

it also raises some questions on tactics of how to handle the appeal its self. do I do a full submission outlining why we think LCFW applies as well (I think they should have been given 15 points)....I could ask for a direction notice for the DWP to explain their position here (in the hope they might just give in as we have some new evidence) but could that just complicate matters if they attempt to change it in a negative way and find them not to have LCFW?

be interested if anyone has had a case like this before and what happened or any thoughts on the best way to deal with it.

I think I would just assume DWP had actually decided to treat him as LCW on the ‘significant risk’ criteria even though they’ve not made this clear in their decision.

And argue LCWRA

thanks sarah,

thats a decent idea. it would make sense thats been the error and an easy one for a tribunal to just agree with.