Thoughts please on ESA appeal - urgent query

ESA appeal file received late yesterday for exceptionally vulnerable client in advance of hearing on Monday…(don’t ask)......review of file indicates that the original DM refused to accept LCW as did the Mandatory Reconsideration DM however the Appeal Writer deems that 6 points can be allocated for Activities 11, 13 and 16 giving client 18 points but the appeal is still to go ahead to Tribunal.

Is it me??

Surely this is not a reasonable approach?.......all thoughts appreciated, we have raised an urgent query with the DM team by telephone but await further update and of course this may not be received in advance of the hearing :(

Liz S - 23 June 2017 01:39 PM

ESA appeal file received late yesterday for exceptionally vulnerable client in advance of hearing on Monday…(don’t ask)......review of file indicates that the original DM refused to accept LCW as did the Mandatory Reconsideration DM however the Appeal Writer deems that 6 points can be allocated for Activities 11, 13 and 16 giving client 18 points but the appeal is still to go ahead to Tribunal.

Is it me??

Surely this is not a reasonable approach?.......all thoughts appreciated, we have raised an urgent query with the DM team by telephone but await further update and of course this may not be received in advance of the hearing :(

Sounds to me like they have accepted LCW but are asking the Tribunal to make a decision on whether client has LCWRA.

It isn’t reasonable. However…...

Should the DWP change its mind at this point, the best the client gets is 18 points and WRAG - depending on the date of decision and claim, that might not even mean any WRAC?

The descriptors that the appeal response writer is prepared to award do suggest to me that a reg. 35 case for the support group may be worth exploring/may be on the cards - e.g. if social engagement is not possible for the majority of the time due to significant distress, what WRA is going to be possible which does not pose a significant risk? i.e. I’m assuming that significant distress would likely result in a deterioration in mental health….

Just a thought, and I know there are assumptions in what I’ve posted…

Surely the appeal should have lapsed as a more favorable decision has been reached, the client would then have rights of appeal against new decision, but would have to lodge new appeal.

It would still be more favorable than original decision even if no WRAC, as client would be entitled to ESA as opposed to not being entitled.

I agree that Reg 35 may be worth exploring.

This reflects standard practice on dealing with appeals.

If the response writer reviews the file and thinks the decision is wrong but not to the extent that the appeal should be completely conceded , they have two options:

1. revise the decision - meaning a new operative decision is made, the appeal lapses and the claimant has to file a new appeal if they are still unhappy.

2. invite the Tribunal to allow the appeal to a limited extent - e.g. WRAG only for ESA or SR mobility for PIP.

DWP practice is to attempt to contact the claimant and establish what they would like to happen. If this doesn’t lead to a clear preference, they will take option 2.

I think if the DWP have conceded LCW prior to the hearing, it will generally be appropriate for the Tribunal to take the starting point that LCW is not in issue and should focus on LCWRA unless there is some reason to interfere with the findings.

I would also think as a rep, it may be worth reminding the Tribunal that these concessions have been made and that they would need to allow the appeal to give effect to them, even if they reject your case for a better award.

s9(6) SSA 1998 clearly states if the decision is revised under this regulation before an appeal except in prescribed situation the appeal is lapsed.
Hence the new decision and whether there is an appeal could be a key fact that needs to be established or whether you have to seek a new MR.  Even id the appeal goes ahead a Tribunal can review the whole award and the risk that entails.

ikbikb - 26 June 2017 02:18 PM

s9(6) SSA 1998 clearly states if the decision is revised under this regulation before an appeal except in prescribed situation the appeal is lapsed.
Hence the new decision and whether there is an appeal could be a key fact that needs to be established or whether you have to seek a new MR.  Even id the appeal goes ahead a Tribunal can review the whole award and the risk that entails.

This is true but the decision hasn’t been revised, so the appeal doesn’t lapse. The DWP have simply, in exercise of their amicus duty, invited the Tribunal to allow the appeal to a limited extent.