ESA & Reg 53

One of my clients failed to attend WCA and the BA stopped her ESA for not showing good cause. I plan to appeal it under reg 53. Thought quite straight forward, BA admit in their submission that they were aware of client’s severe mental health issues as far back as 2008 including being afraid to leave her house. The latest decision makes no reference to client’s mental health issues.

However now I have read reg 53 I note that this refers to a work focus interview not a WCA, are these different things, and does this mean that reg 53 would not be applicable.

I also note that the relevent section (61), states ” that the secretary may take the following into account” etc “the physical or mental health condition” etc.

I am a bit worried about the use of the word “may” rather than ‘must’. Does this mean that the BA are correct in not assessing the client’s mental health issues before making their decision, despite them being previously aware of this.

We’ve got a double confusion here. Reg 53 doesn’t relate to work-focussed interviews but to work-focussed health-related assessments, the second examination intended to be carried out at the same time as the WCA but abandoned some months ago either to dsave time or money or becasue it wasn’t adding value.

The failre to attend a WCA is in reg 38, and reg 39 lists the things that must be taken into account in determining good cause and includes the claimant’s state of ehalth at the relevant time and any disability.

Hello

turned out to be a medical assessment as part of a work capability assessement, so quoted all of the above at the tribunal and was successful. many thanks for all yoru advice.