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Top Incapacity related benefits topic #4895

Subject: "ESA appeal - EMP awards points but not Decision Maker!" First topic | Last topic
Sam Warburton
                              

Welfare Rights Worker, Broadway (London)
Member since
13th Jul 2004

ESA appeal - EMP awards points but not Decision Maker!
Fri 19-Feb-10 12:07 PM

I have just come across an unusual problem with an ESA appeal I am working on.

I received the appeals bundle from the DWP yesterday only to discover that while the EMP report supports awarding 24 points under the mental health discriptors thereby concluding that she has a limited capability for work, the decision maker has awarded a big fat 0. There wasnt any further medical evidence in the bundle to contradict the EMP and although the client completed her own ESA50 Questionnaire and its not entirely successfully completed, Im still perplexed by the nil point decision.

The EMP report is some what contradictory in places (when is it not!) however it clearly states that the client has difficulty with execution of tasks (9 points) and coping with social situations (15 points)/

Is this an administrative error or can the Decision Maker completely ignore their own EMP report and decide not to award points?

  

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Replies to this topic
RE: ESA appeal - EMP awards points but not Decision Maker!, nevip, 19th Feb 2010, #1
RE: ESA appeal - EMP awards points but not Decision Maker!, Ruth_T, 19th Feb 2010, #2

nevip
                              

welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004

RE: ESA appeal - EMP awards points but not Decision Maker!
Fri 19-Feb-10 12:16 PM

The decision maker is free to depart from the EMP’s assessment but his decision must be based on evidence (i.e. some other medical report/information) or from material contradictions in the EMP assessment. If not, the decision is defective on grounds of irrationality.

This is a highly unusual situation and I’m inclined to think that it is a slip of the pen.

  

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Ruth_T
                              

Volunteer adviser, Corby Welfare Rights Advice Bureau
Member since
03rd May 2005

RE: ESA appeal - EMP awards points but not Decision Maker!
Fri 19-Feb-10 07:07 PM

What usually happens when the DM has a major disagreement with an EMP over awarding of points is that the case is sent back to the EMP for re-work. We've seen a few of these, and they always come back from re-work agreeing with the DM.

However, tribunals appear to take a dim view of this, and we've never yet lost an appeal which was sent back to the EMP for re-work.

  

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