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

Appealing WCA decision when client works 10 hours per week

kd01
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Macmillan Benefits Team, LeicesterShire Citizens Advice Bureau

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Hi,

Just wondered if anyone has had any experience of appealing a WCA decision when the client is actually working??

My client is working 10 hours per week in a laundrette and has been doing this work under the permitted work rules for ESA. However, she was reassessed in February and has now been found fit for work. CLient wants to challenge this decision but it seems quite difficult when she is actually working.

Has anyone had a similar case where a client has been working and won the MR/appeal?

Any comments are much appreciated!

Kate

Jane OP
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The National Autistic Society, Welfare Rights, Nottingham

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Yes, is quite a common scenario. Key thing is that the WCA isn’t really an assessment of whether you can work or not – is just about how many points the person scores (or whether being found fit would be substantial risk etc).  As well as arguing the descriptors that apply to her as you usually would you need to also explain how the activities she carries out in her current work doesn’t contradict the application of any of the descriptors that you have identified.

Jane

BC Welfare Rights
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The Brunswick Centre, Kirklees & Calderdale

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Also, remember that it is Limited Capability for Work that is being assessed, not No Capability for Work. Generally speaking the ESA descriptors apply for the majority of the time, so 10 hours p/w is some way off this. 16 hours per week is the cut off and the closer the claimant works to this amount the harder it is to argue that there would be a substantial risk to their health (Reg 29) from being found fit to do more. 10 hours p/w is not that close to 16, particularly if issues such as fatigue, etc., are relevant.

kd01
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Macmillan Benefits Team, LeicesterShire Citizens Advice Bureau

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Thanks both - really helpful!

stevenmcavoy
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Welfare rights officer - Enable Scotland

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ive found the client working can in some ways work in your favour as it tends to make the tribunal a bit more sympathetic to the client.

Mike Hughes
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Senior welfare rights officer - Salford City Council Welfare Rights Service

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stevenmcavoy - 12 June 2017 12:35 PM

ive found the client working can in some ways work in your favour as it tends to make the tribunal a bit more sympathetic to the client.

Was just going to say exactly that. Whilst DMs see it as an opportunity to nail an easy target it has to be said that tribunals mostly do the exact opposite and, in my limited experience, can be quite scathing to boot.