REassessing ESA

We are having a number of clients who on winning their ESA appeals within a short period, sometimes weeks, are sent new ESA50’s.

Is there a regulation that stipulates how often a claim should be or can be reviewed or is this something that DM determines?

Thanks in advance.

The consensus seems to be that reviews are usually annual. One reason they seem to follow so fast on a successful appeal is probably that appeals are taking so long it’s about a year from the last assessment by the time the case is decided.

I have it on good authority that at least one delivery centre has a policy of sending out a new ESA50 immediately upon a successful appeal.  I am even aware of a case where the claimant was sent a new ESA50 before notification of the implementation of the Tribunal decision.  Unlawful?  Probably, but short of JR, no way of stopping this abuse.

I have had clients who have not had to appeal and sent forms within four months, that is why I was asking. My client claimed ESA on conversion from September 2011 and was placed in the support group. Four months later another ESA50 sent it is quite difficult to understand why?

Well, people can move out of the support group - sometimes, anyway! Say if it’s for successful cancer treatment or something of the sort, or recovery from major surgery. You can’t assume that just because someone is in the support group they always will be. But of course lots of people won’t.

I wasn’t making that assumption although the guy has been on IB for years and HRM & HRC DLA i.e very unwell so a second review in what four months seems excessive not to mention a waste of time now what with an appeal etc.

I think, often, the problem is that the tribunal overturns the decision, and so the ESA85, but the date in the ESA85 stating I recommend that a return to work could be in 3, 6 etc months is put on the system and so we get this problem.

This is the daftness of the system: 30,000 new claimant assessments delayed and people who have been through an appeal (albeit limited to date of original decision) being re-assessed.

What would potentially help is if the if the law allowed a tribunal to set a new WCA date. After all, there is a medical professional sitting on the panel. A tribunal can stipulate a DLA award period, but not an ESA WCA-free period. Am I missing something obvious?

This might be of interest to those who replied to this: -

From: DWP Adelphi Freedom-of-Information-Request, Department for Work and Pensions

2 April 2012    

Our Ref:2994-1003

Dear Mr Smith,

Thank you for your Freedom of Information request that was received by the Department for Work and Pensions (DWP) Adelphi on 5 March 2012 and forwarded on 6 March for response by DWP Medical Services Contracts Correspondence Team (MSCCT) Freedom of Information Officer.

In your email you asked to be provided with information answering the following questions:-

Dear Department for Work and Pensions,

I would like the following questions answered.

1. After a claimant is successful at appeal what is the earliest time they will be recalled to be reassessed for a WCA Assessment by Atos (Weeks/Months)?

2. Can you inform me why a stenographer is not used to record whatever is said by all parties in an WCA/ESA Assessment appeal?

In answer to Q 1 once a claimant has had a successful appeal the earliest date a Work Capability Assessment (WCA) will recommence is I month following the outcome of the appeal. When deciding on the re-referral date the Decision Maker must consider the following: * The type of Limited Capability for Work (LCW) * Whether the LCW is likely to change for better or worse * Whether the Tribunal has suggested a re-referral date * Factors the Tribunal took into account in reaching their decision * The original prognosis * Any comments by the medical adviser * Whether any surgery is likely that may offer a significant improvement.

In answer to Q 2 following a search of our paper and electronic records, I have established that the information you requested is not held by DWP on this subject, I would note though that the addition of a trained stenographer to attend every WCA would involve significant extra costs for the taxpayer.

If you have any queries about this letter please contact me quoting the reference number above.
Yours sincerely,

DWP Central FoI Team

The difficulty with all of this is that in many cases the tribunal will have rejected the medical assessment as inaccurate. So the DWP relying on the report from that assessment in order to set the review date is potentially difficult.

I suspect, despite all the evidence they say they take into account in making the decision on when to review, that in almost all cases they simply go with whatever date was put down by the HCP regardless of how much the tribunal trashed that report.

There may be some issue as to whether such an approach (if this is what they do) is lawful overall but working out how to bring the challenge is quite tricky.

In my view a change in the law is required to allow tribunals to set the next WCA date. This could take account of the date of the original decsion and delays in reaching a hearing.

The current situation is perverse and disproportinate: a healthcare professional sitting with a judge issues a decision on Monday, but on Tuesday a client can get a WCA appointment to be assessed again by another health care professional. The change in law would create a similar *system to that currently operating for for DLA. There would be clear benefits: fewer merry-go-round appeals, time freed up up for first-time WCAs (130K currently on the waiting list), cost savings all round, more credibility, etc.

*Ah yes, I forgot, the government doesn’t like the current DLA system, so nothing is going to improve is it?

Steve,

Couldn’t agree more with your comments.

Most health professionals know nothing about learning disability but cannot be belamed for this: it isn’t a medical condition and they don’t get any training on it as part of their professional qulification. Only if you can get some educational psychologists doing ESA evaluations will these people be assessed properly.
But it does astonish me that so few of them can recognise the manifestations of learning disability: over the years at Tribunal I met so many people where it was obvious to me if not when they walked in the door, at least after talking to them for five minutes, that they had significant learning disability. It ain’t exactly difficult to tell.

This is the paradox of the process. We have a client who has been allocated a personal assistant (obviously PAs are given away like Smarties in the current social care funding climate aren’t they?). Client has substantial cognitive problems caused by brain injury. Was allocated to the Support Group on appeal, then reassessed by Atos - and yes you guessed it - kicked out again at the next WCA. No change in their condition. So, here we go again, back to the tribunal.

I hope the National Audit Office and/or the Work & Pensions Select Committee take a close look at the whole ESA cycle. Not only do unnecessary WCAs cause anxiety to claimants (especially those with mental health conditions), but they also waste public funds in a variety of ways. The government did a a great PR job of selling ESA via the media, but I’ve noticed a shift in what people are starting to say now. Many people have relatives and friends who have been through the process and if PIP turns out to be more of the same then the last shreds of DWP credibility will be out of the window.

I still remember the DLA BIP project from the mid-90s. The select committee’s report into that fiasco gave the example of a claimant with Down’s syndrome who was asked by a Benefits Agency operative (with two days training) ‘when he had first contracted the condition’.  We don’t seem to have progressed much in the intervening years.

I accept that most health care professionals know very litte about learning difficulties but the thing is, as Ariadne says, such conditions are usually blatantly obvious when you spend as little as 5-10 minutes with the client. I had a client with a mental age of 8 who attracted nil points on the WCA assessment (following successful appeal she was correctly placed in the support group- no doubt the merry-go-round will begin again at her next WCA) and I don’t accept that her difficulties would not have been apparent during her assessment. Indeed, the examiner recorded that she was unable to subtract 20p from £1.00 and could not repeat a simple phrase when asked, but still failed to allocate her with any points. Increasingly, in my opinion, the decisions are not just wrong- they’re perversely wrong. Incompetence or enemy action?