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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

DWP Decision maker decides when claimant to be re-assessed for next WCA and no right of appeal?

EKS_COTTON
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Tax and Welfare Rights Officer, Equity

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The decision maker moved the claimant from WRAG to support group following a MR, however added that 6 months from the date of her operation she was to be re-assessed.  He/she applied reg 35 and 25 of the ESA regs 2008.

The evidence from the specialist that was submitted with the MR very cleary states that client will need at least 9-12 months to recover and until then not to be deemed able to work.

Client put an appeal in and received a letter from DW saying she couldn’t appeal.  She persisted and asked the tribunal service to actually provide a reply - she got the response attached.

Is it just me or is that not satisfactory?  No law is quoted at all.

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Brian JB
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Advisor - Wirral Welfare Rights Unit, Birkenhead

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There is no legal provision regarding when capability for work can be re-assessed outside of regulations 19(7) and (8) and 34(4) and (5) that I am aware of. The “review” date does not actually form part of the decision that a person has LCW or LCWRA and so is not something that you can “appeal” against. In general, around here, the actual review of LCW/LCWRA takes months to take place even after a case has come to its “review” date, so there is a good chance your client would not face a further WCA within the 12 month period

EKS_COTTON
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Brian - that is very helpful yes, shame the judge couldn’t make the same point.

And I did think the same re. actual re-assessment time in practice.  Just irritated!

neilbateman
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Welfare Rights Author, Trainer & Consultant

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AFAIK DWP seek Maximus’s advice before revising an ESA decision after getting further medical evidence.

Maximus have absolutely no financial and organisational interest in recommending regular repeat assessments or for them to happen at short intervals. Oh yeah.

I have had some success in getting absurdly short review periods changed by using the DWP complaints procedure. Can also be worth involving an MP.  As a non-appealable decision, technically, one could judicially review an irrational refusal to change a review period.

Mike Hughes
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Difficult one. The medical opinion is 9 to 12 months but what drives that and how accurate is it? We all know that there’s an inevitable element of guess work and a certain amount of making the client feel good when their recovery appears to be ahead of schedule. I’ve had a DS1500 completed with some reluctance where the person died within 12 hours and one where the person went on to live for 18 years. In the latter case not one professional involved in the case subsequently said the original opinion was wrong. At best you’re making a guesstimate.

What you’re left with, especially if Maximus have been consulted, is a different medical opinion of the same thing. That doesn’t necessarily amount to irrationality. You also have to factor in that a specialist has written specifically about deemed ability to work. That isn’t something a consultant would ordinarily comment upon. Indeed what they would ordinarily do is pretty much what ESA want to do. They’d set a review date and comment upon it then after seeing the patient then i.e. “yes, you can go back to work now” or “no, you really shouldn’t”. So, did the rep. or the patient ask the specialist to comment specifically or was the specialist doing no more than commenting on whether the person ought to return to their own role?

If the specialist perspective was 3 years and Maximus say 6 months then you have something to go at. The difference between 6 and 12 in these circumstances is going to be a long way from clear cut.