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Subject: "ESA Appeal insufficient evidence" First topic | Last topic
Cookie
                              

Welfare Rights Adviser, Havering CAB
Member since
30th Oct 2009

ESA Appeal insufficient evidence
Mon 08-Feb-10 02:42 PM

Hi All,

Has anyone had a case similar to this? We have a client who is challenging an ESA decision.

We have received the Secretary of States Submission, however a copy of the ESA 50 is missing. The DWP state that from their records they can see that our client did complete an ESA 50 and that it was seen by the examining doctor. But unfortunately the form has been mislaid and they cannot find it despite various searches!!

Can this case be challenged under insufficient evidence or burden of proof? Has anyone challenged such a decision?

Any comments would be much appreciated.

Thank you

  

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Replies to this topic
RE: ESA Appeal insufficient evidence, cab01, 12th Feb 2010, #1
RE: ESA Appeal insufficient evidence, nevip, 12th Feb 2010, #2
      RE: ESA Appeal insufficient evidence, cab01, 12th Feb 2010, #3
           RE: ESA Appeal insufficient evidence, nevip, 12th Feb 2010, #4
                RE: ESA Appeal insufficient evidence, ariadne2, 12th Feb 2010, #5

cab01
                              

Welfare Rights Adviser, Havering CAB, Hornchurch, Essex, RM11 1AX
Member since
09th Apr 2009

RE: ESA Appeal insufficient evidence
Fri 12-Feb-10 12:36 PM

Hi it’s me again!!

I have had no replies for my last entry regarding an ESA50 form missing from the Secretary of States Submission. I last asked if I could maybe challenge the WCA decision based on insufficient evidence, however I am now wondering if this decision is simply left up to the tribunal to use it inquisitorial powers to obtain the information which was recorded in the ESA50 form?

However, a decision was made by the decision maker without considering all the evidence. It states in the Secretary of States Submission that “Records indicate the appellant did complete form ESA50 and returned it, and it was seen by the examining doctor, but this form has since been mislaid and cannot be found despite numerous searches being made”.

It does not mention the ESA50 form being seen by the decision maker. In addition to this no further medical evidence was obtained from the appellants GP/Consultant. Therefore the decision maker has made a decision based on the medical advisers report only.

Surely a decision maker would have duty to obtained further medical evidence from a GP/Consultant if the ESA50 form was missing? In this case a decision has been made solely on the medical advisers report??

I am trying to write a Submission Report this afternoon and want to bring to the Tribunals attention that a decision was based on the medical advisers report only. Does anyone have any Commissioners decisions or has anyone challenged a similar case to this? Am I talking utter rubbish? Should I just write a report in the usual way and let the tribunal decide what to do?

Sorry for my ramblings – it is the end of the week so please forgive me…



  

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nevip
                              

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

RE: ESA Appeal insufficient evidence
Fri 12-Feb-10 12:59 PM

It’s often tempting to undercut the decision under appeal on some procedural ground and in the past there was often plenty of scope to do so. However, over the years the commissioners and the courts have severely restricted these types of arguments and increasingly stressed the inquisitorial function of tribunals and the lack of formal requirements that matter more in the courts.

Previous IB50’s are often missing in appeal papers and tribunals usually can deal with cases without them. However, if an appellant alleges there has been no or little change since a previous assessment then tribunals have been warned that it would be prudent to adjourn and request production of the missing IB50. But, where a previous one cannot be found or where the current one cannot be found then that will not render the DM’s decision less effective, largely because the appellant will have had the chance to explain his problems to the doctor at the medical and a DM has sufficient ground in law to supersede the last awarding decision if he has a report from an approved doctor.

The tribunal, therefore, stands in the shoes of the DM and holds a complete re-hearing of all the issues and considers all evidence available to the DM at the time and any evidence since obtained by and from whatever source providing it has probative value.

I, personally, would concentrate on the substantive issues, obtain the best medical evidence I could from my client’s own doctors to challenge the IB85. I have won many ICB appeals with little or no supportive evidence but simply on my client’s testimony and credibility on the day.

  

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cab01
                              

Welfare Rights Adviser, Havering CAB, Hornchurch, Essex, RM11 1AX
Member since
09th Apr 2009

RE: ESA Appeal insufficient evidence
Fri 12-Feb-10 01:42 PM

Thanks so much for your response.

I agree with what you’re saying. I am not sure what it is like in your area but we have many clients that come to us who wholly disagree with what has been recorded by medical advisers in this area. Most clients state they are not examined, when it states in the report they were. Clients have answered no to questions put to them by the medical adviser and it is recorded that the client said yes etc, etc.

I have actually seen reports that appear to have been written about someone else entirely, instead of the person sitting in front of me! Therefore in the absence of any supporting medical evidence from the clients GP or Consultant and the mislaid ESA50 I just think it is unfair that the decision maker made a decision based on the medical adviser’s opinion only.

However, (rant over) I have obtained medical evidence from the clients GP, which is very supportive. I have mentioned in my report of the fact that a decision was made purely on the medical advisers report, which with respect is inconsistent with the report we have obtained from the clients GP. I wondered if there was a legal argument on procedural grounds or lack of medical evidence, but it appears not.

Thanks for getting back to me. At least my mind can rest in the knowledge that I am not missing anything…ah all is calm again…oh and not forgetting its Friday.

Thank you

Have a good weekend!


  

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nevip
                              

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

RE: ESA Appeal insufficient evidence
Fri 12-Feb-10 02:52 PM

Fri 12-Feb-10 02:54 PM by nevip

If I had £1 for every client who told me the that the doctor put down the opposite of what he told him I'd be rich. The problem is a fundamental lack of understanding by the claimant of the process. That is not claimants fault as the process is never explained to them until they come to see people like us.

I have to explain that the doctor is there to make his own clinical findings and record his own opinion of restriction of function and is not there to just repeat the claimant's opinion on the matter. However, when it comes to description of a typical day this is different. The doctor often has claimants doing things that they are not doing, such as taking non-existent dogs for walks. Here, the anger of claimants is justified.

I explain that the clinical findings and opinion of restriction of function is just an opinion (however well informed it may be) and is there to be challenged by other evidence at appeal. I find that once clients have the process explained to them they become less anxious as they gain knowledge. Furthermore, tribunals in my area are all to aware of the shortcomings in the assessment process including the ludicrous software. Success rates of ICB appeals are ridiculously high enough to make the assessment process look highly flawed.

Wishing you a good weekend also.

Regards
Paul

  

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ariadne2
                              

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

RE: ESA Appeal insufficient evidence
Fri 12-Feb-10 05:23 PM

It's also worth saying that IB50s can be curiously unhelpful. I have seen lots where a claimant has said he had no problem with a particular activity, the doctor has agreed, and then it emerges at the appeal stage that the claimant had not understood the question. It's like DLA forms where half of it is left blank. If the IB50 did turn up it might not really help.

  

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