ESA Appeal

Attended an ESA tribunal recently. Our client attended a WCA in September 2009; she presented with lower limb problems. She scored zero points following the assessment. The decision was made on the 23rd of October 2009; three days earlier on the 18th of October she had a fall breaking both her wrists. She had become incapacitated 5 days before the decision date; sometime after the 23rd of October she made a new claim because of the new condition.

At the tribunal we asked the panel to consider descriptors relating to picking up, lifting and moving and manual dexterity, on the basis that at the time of the decision our client had functional limitations with her hands, even though at the medical there were no problems with her hands. The panel rejected this reasoning and only awarded points for sitting and walking. This totalled 12 which fell short of the 15 necessary.

What should we do; could there possibly an error in law?

ICB/ESA appeal papers record both the date that the decision was made and the date it was notified to the claimant.  They are not always the same.  The first date merely records an admin’ decision.  That decision has no legal force until notified to the claimant (Regina v Secretary of State for the Home Department and another ex parte Anufrijeva – 2006 – HL). 

So as long as the accident occurred before the date that the decision was notified to the claimant then any relevant functional impairment that also arose prior to that date also must be taken into account by the tribunal and weighed accordingly.  You need to get the statement of reasons and go from there.