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ESA reassessments to WRAG
I’ve just had 2 clients who have completed ESA50’s and, without an assessment, been placed in WRAG when they were previously in Support group.
Same boxes were ticked as in last ESA50 (including ones which double up as Schedule 3 descriptors) and evidence from CPN’s sent. No reasons were sent, just the letter that tells them about a change in their benefit amounts.
Can I still ask for written reasons when no medical was carried out (and no change reported)?
[ Edited: 14 Nov 2019 at 04:09 pm by unhindered by talent ]The fact that there was no medical assessment doesn’t change anything. There is still a decision; the DWP still need to have reasons for that decision and you are still entitled to request a written statement of those reasons. There will presumably be a paper based HCP advice which you can ask for too.
Thanks very much - I tend to over-think things. Am I right in thinking I have 14 days from the date of the reasons letter to submit a reconsideration request?
Yes 14 days (but the speed with which DWP post travels you will probably actually get about 4-7 days by the time that you receive it). The paper based HCP advice is called an ESA 85A.
Many thanks! It’s 7 years since I had to do an ESA MR (such is the quality of the evidence I get) so i’m quite rusty.
Yes 14 days (but the speed with which DWP post travels you will probably actually get about 4-7 days by the time that you receive it). The paper based HCP advice is called an ESA 85A.
Update
Not having had the written reasons in 3 weeks, I called the escalation number. Guy said there weren’t written reasons when going from SG to WRAG and that the request was out of time as the decision date was 15th Sept (I only learned about the decision on 7th November). I explained that, as per the reasons given in my request for a late MR, the client’s learning difficulties meant that he was not aware of the implications and so had not alerted anyone. Escalation guy said he’d have a word with a DM about the case but if he couldn’t change the decision he’d send me the HCP report. That was a week ago and no decision or report.
Do I send in the Schedule 3 descriptor I think applies with the evidence I have blindly or wait for the report? I don’t want to mess it up by not sending in my case after asking for a MR & saying i’d send my submission when i’d seen the reasons. On the other hand, I don’t want to send anything in without knowing which points have already been awarded :-(
Any advice welcome
I think we may be venturing into “over-thinking” territory…
You are entitled to the reasons and the HCP report, but it is probably unlikely that seeing them will give rise to some brilliant insight which will justify spending an indefinite amount of time running around chasing them.
Whilst it might be nice to say “you’ve scored my client points for getting about, dealing with other people and inappropriate behaviour, therefore it is likely that reg 35 applies”, that is ultimately something which the decision maker can figure out for themselves.
The priority IMO is just to get the MR in ASAP with whatever (brief and/or generic if necessary) comments you want to make at that stage.
Thanks, Elliot. I do over-think things!
Is the situation still that if an ESA (PIP & other DWP benefits also?) MR request is made outside of a month but within 13 months and is refused as being out of time you can still appeal to tribunal?
I’ve had quite a lot of clients who were in SG under reg.35 being moved to WRAG as DWP are now arguing that under their new systems people can be asked to only do very ‘light touch’ WRA if this is all they are capable of doing and so there can’t be any risk. So far they’ve all been successful at FTT but I think that if a FTT went along with the DWPs arguments this could be challenged as in my experience the DWP submissions are still not complying with the requirements set down in IM v SSWP and are only providing very generalised information re. potential WRA and also because I think there is an argument that some of the activities that the DWP are classing as ‘WRA’ potentially do not constitute WRA under the definition in the Regs.
Is the situation still that if an ESA (PIP & other DWP benefits also?) MR request is made outside of a month but within 13 months and is refused as being out of time you can still appeal to tribunal?
Yes.
R(CJ) and SG v Secretary of State for Work and Pensions (ESA): [2017] UKUT 324 (AAC) ; [2018] AACR 5
Held, allowing the appeal, that:
the claimant’s entitlement to social security benefits, both on an initial claim for benefit or a subsequent challenge to a decision on it, can be made subject to the claimant complying with time limits that can be extendable or non-extendable (paragraph 70);
there was a need for clear language to remove or interfere with existing rights of appeal founded on the nature of those rights and the benefits they give to those affected by appealable decisions: Saleem v Secretary of State for the Home Department: [2000] EWCA Civ 186 applied (paragraph 65);
there was nothing in the explanatory notes to what became section 102 of the Welfare Reform Act 2012 or otherwise to suggest that if a claimant was late in making a mandatory reconsideration request, but still within the further discretionary period in which a F-tT might permit a late appeal, the Secretary of State, by refusing to extend the time to admit the late application, would have the power to exclude the claimant’s right of appeal to a F-tT on the merits, subject only to challenge by way of a claim for judicial review (paragraphs 38 to 40);
section 12 of the Social Security Act 1998 confers a right of appeal to the F-tT and the Child Support (Decisions and Appeals) Regulations 1999 do not operate to restrict that the right of appeal to cases where the Secretary of State has considered, on the basis of an in time application for revision, whether to revise the decision under section 9 (paragraphs 41 to 45).