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excessive delay between ESA50 and ESA85. any caselaw?
Hi all,
I have a couple of cases where the ESA50 is a) missing from the appeal papers (probably never issued - at least not in this assessment) and b) where the ESA50 is in the papers but is 2+ years previous to the ESA85.
Have some dim bell ringing about the whole WCA process being void if ESA50 not issued to a claimant in the first place or where the ESA85 carried out far later.
But have drawn a blank in research.
Anyone got any clues or can say my memory is wrong and there is no such law/ caselaw?
I think you dreamt it mate. The proportion of my MH clients that manage to return an ESA50 is quite slim but all still get sent for assessment unless I intervene. There’s no statutory requirement for an ESA50; only for evidence in accordance with the medical evidence regs.
Also note requirement to provide ESA50 relaxed in mental health cases. I can’t recall any case law either. Why not make some!
Having seen the above posts, I suspect appeals (in cases where claimants have recovered from ill-health) re no ESA50/ lost ESA50/ delay between the ESA50 and ESA85/decision, will fail because, as at the date of decision, client did not satisfy the WCA as s/he had recovered.
But: I think the other option is to make a formal complaint for maladministration. That is that the DWP failed to carry out the assessment within 13 weeks. As a result, the client has lost out on benefit. Evidence will be crucial but, of course, it may be difficult (or nigh on impossible) to show that the WCA was satisfied at an earlier date (i.e. at the end of the 13 week assessment period).
Ultimately, the Ombudsman can investigate and might make a suggestion re suitable compensation (equivalent to the lost component and a token amount for distress etc).
I haven’t seen any argument re pros and cons that this is what clients should do. Maybe because many clients are happy enough with the basic award as there is always a risk of not getting ESA if the assessment is carried out promptly.
But there must be thousands of clients who have recovered and gone back to work having not been assessed and therefore missed out on a component. I haven’t seen any threads on Rightsnet about this potentially huge issue either, although I may have overlooked it.
The commentary in the Legislation volumes does not, as far as I can see, address this issue either. I am a bit puzzled about that.
If anyone has gone down the complaints route and would be willing to share their success/ experience, I’d be eager to hear about it or if anyone has further thoughts ...
But there must be thousands of clients who have recovered and gone back to work having not been assessed and therefore missed out on a component. I haven’t seen any threads on Rightsnet about this potentially huge issue either, although I may have overlooked it.
Regarding form ESA50 not being in the appeal submission, it is quite possible that this was posted to him but he never returned it. Rather than the DWP pursuing him for non return of the form, the matter won’t be pursued by the DWP if there is an identified mental health condition and they DWP /ATOS will go straight to the ATOS Medical. Regardling the 2 year time lag between ESA85 and ESA50, it raises the question why there has been such a long delay between the two events. 3 months is considered a bit iffy. I work for welfare rights after retiring from the DWP where I worked as a decision maker / appeals officer on this line of work.
Having seen the above posts, I suspect appeals (in cases where claimants have recovered from ill-health) re no ESA50/ lost ESA50/ delay between the ESA50 and ESA85/decision, will fail because, as at the date of decision, client did not satisfy the WCA as s/he had recovered.
But: I think the other option is to make a formal complaint for maladministration. That is that the DWP failed to carry out the assessment within 13 weeks. As a result, the client has lost out on benefit. Evidence will be crucial but, of course, it may be difficult (or nigh on impossible) to show that the WCA was satisfied at an earlier date (i.e. at the end of the 13 week assessment period).
Ultimately, the Ombudsman can investigate and might make a suggestion re suitable compensation (equivalent to the lost component and a token amount for distress etc).
I haven’t seen any argument re pros and cons that this is what clients should do. Maybe because many clients are happy enough with the basic award as there is always a risk of not getting ESA if the assessment is carried out promptly.
But there must be thousands of clients who have recovered and gone back to work having not been assessed and therefore missed out on a component. I haven’t seen any threads on Rightsnet about this potentially huge issue either, although I may have overlooked it.
The commentary in the Legislation volumes does not, as far as I can see, address this issue either. I am a bit puzzled about that.
If anyone has gone down the complaints route and would be willing to share their success/ experience, I’d be eager to hear about it or if anyone has further thoughts ...
The way into this would be a money claim in the County Court but there is no Legal Aid for that. It would likely need to be someone who has inherited deep, heavy pockets.
Unless I win the lottery…