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Top Incapacity related benefits topic #4826

Subject: "URGENT - further ESA50 issued after successful Tribunal outcome" First topic | Last topic
Liz S
                              

Welfare and Financial Assessment Officer, Welfare Rights Team Hereford
Member since
21st Nov 2007

URGENT - further ESA50 issued after successful Tribunal outcome
Thu 04-Feb-10 12:14 PM

All advice appreciated.

My client was successful in an ESA Tribunal at the beginning of Dec 2009 - she sufers from CFS/ME. She was placed in the work related activity group and has now received a further ESA50!!

She is very panicky about this and has been advised by JCP that she 'has' to have another medical as it is mandatory twelve months after the first one??

My understanding was that it is discretionary - can we challenge thuis as her condition can significantly deteriorate following undue stress.

Thanks for your help.

  

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Replies to this topic
RE: URGENT - further ESA50 issued after successful Tribunal outcome, ariadne2, 04th Feb 2010, #1
RE: URGENT - further ESA50 issued after successful Tribunal outcome, nevip, 05th Feb 2010, #2
      RE: URGENT - further ESA50 issued after successful Tribunal outcome, Neil Bateman, 05th Feb 2010, #3
           RE: URGENT - further ESA50 issued after successful Tribunal outcome, Dan_manville, 05th Feb 2010, #4
                RE: URGENT - further ESA50 issued after successful Tribunal outcome, iut044, 09th Feb 2010, #5
                     RE: URGENT - further ESA50 issued after successful Tribunal outcome, stevegale, 25th May 2010, #6

ariadne2
                              

Welfare lawyer and social policy collator, Basingstoke CAB
Member since
13th Mar 2007

RE: URGENT - further ESA50 issued after successful Tribunal outcome
Thu 04-Feb-10 07:12 PM

This has just happened to one of our clients who has been called up for a medical later this month - the one he (successfully) appealed about was only in July and the appeal in January.

  

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nevip
                              

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

RE: URGENT - further ESA50 issued after successful Tribunal outcome
Fri 05-Feb-10 08:28 AM

There is no such 12 month rule.

  

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Neil Bateman
                              

Welfare rights consultant, www.neilbateman.co.uk
Member since
24th Jan 2004

RE: URGENT - further ESA50 issued after successful Tribunal outcome
Fri 05-Feb-10 10:47 AM

Absolutely no such rule in the law. However, the DWP set control periods to trigger new medicals/ESA 50s. The length of these are decided by DWP staff and are not subject to appeal and generally not known to the claimant.

However, the usual administrative law principles apply to such things - not having blanket rules, looking at the merits of each case, not being irrational, etc.

It may be possible to challenge the issue of a new ESA 50 so soon after a Tribunal by using the DWP's complaints procedure and/or possibly judicial review.

  

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Dan_manville
                              

Caseworker, Birmingham Tribunal Unit
Member since
08th Jun 2004

RE: URGENT - further ESA50 issued after successful Tribunal outcome
Fri 05-Feb-10 10:55 AM

I had a client who experienced this revolving door a couple or three years back. After the 3rd successful PCA appeal, when he turned up at our door with another IB50 I sent it back with a covering letter complaining the he was being victimised and he passed the PCA on scrutiny.

Now I'm not usually one for alleging any collusion but it was more than a bit convenient...

  

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iut044
                              

Advisor, South West Lancashire Independent Community Advice
Member since
15th May 2007

RE: URGENT - further ESA50 issued after successful Tribunal outcome
Tue 09-Feb-10 03:32 PM

If you have any supportive evidence from the previous appeal send that that as well as the ESA50.

  

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stevegale
                              

Co-ordinator, Disability Information Service (Torbay)
Member since
03rd Feb 2004

RE: URGENT - further ESA50 issued after successful Tribunal outcome
Tue 25-May-10 03:25 PM

Resurrecting this old thread as now have three clients being sent ESA50 and onward medicals following successful appeals go into WRAG. Started formal complaints procedure.

Local BDC recently stated 'everyone' seen at 3 or 6 month intervals. Of course nothing in law requires this. The problem seems to stem from the 'prognosis' usually found in the ATOS medical report.."should be better after 3 months", etc.

Reg. 23 (quoted by BDC) in reply to complaint states:

Claimant may be called for a medical examination to determine whether the claimant has limited capability for work

23.(1) Where it falls to be determined whether a claimant has limited capability for work, that claimant may be called by or on behalf of a health care professional approved by the Secretary of State to attend for a medical examination.

However, in each case, the tribunal has ALREADY determined whether there was limited capability for work. My understanding is that the Pathways provider should then make appropriate recomendations regarding clients work prospects, etc.

Was wondering if anyone has pursued this further or had a succesful JR decision, as it appears clear case of the JCP fettering its own discretion.

  

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