Inadequate ESA85

Yes I know I know an inadequate medical report is nothing new… 

However I am currently dealing with an appeal for someone who failed the PCA where the DM has clearly stated in the sub papers that the medical was inadeqaute.  It was initially returned as it did not contain full clinical findings from the examination (as per the handbook), and the DM wanted to see these in relation to the lower limbs.  The DM said “This may involve arranging a new examination to obtain a report of full cinical findings”.  Instead a ‘rework supplement’ was submitted which contained a couple of sentances re-iterating what had already been said.  The DM has said on the decision sheet “insufficient clinical findings on return from re-work” but nontheless gone ahead and make a negative decision,

My feeling is that there are no grounds to supersede where a medical report on which a decision has been based has been deemed to be substandard by the DM.  However having read through the ESA regs, there doesn’t appear to be anything specific as regards the legal standing of the medical report?  Any ideas?

Thanks

Sara

There is no requirement in the regulations for a report to contain anything at all (as in, no requirement to contain clinical findings, or anything else). The issue will be the degree of weight that a tribunal is prepared to place on a report which, on the face of it, fails to support its conclusions with clinical findings, where relevant.

If the person passed a previous medical assessment for ESA, and the client says s/he is no better than at that time, you could argue that the Secretary of State has not shown that there has been any change to show that the descriptors previously awarded no longer apply.

Otherwise, I would get together whatever medical evidence you can get in support of your client, and argue that more weight should be given to that evidence, and the evidence of your client, because of the deficiencies in the ESA85.

I have submitted the argument that the previous ESA85 should be provided as the claimant is sure that they had not changed since then.

The judge very helpfully made a direction that the Sec of State should provide these papers and adjourned the hearing. In due course we got an additional sub that firstly apologised for the delay as the papers had been hard to track down but then saying they were not under any obligation to hand them over and were not going to do so.(so0 why spend so much time tracking them down?)  The judge at the second hearing was quite put out by this apparent disregard for a direction but as my client was anxious to get the matter over and done with we did not pursue it and won the appeal anyway.

I would be very interested to know if anyone else has had such a strange response to what seems to be a pretty straightforward request, even if there is some support in law for the decision to end ESA not being a supersession of the original decision to award it and the reasons for the previous decision not being relevant (which I think was what was being suggested, although I can’t remember the exact details) I would have thought it was just routine to provide a previous medical and not something that should cause any fuss.

Pete C - 31 October 2011 12:06 PM

I have submitted the argument that the previous ESA85 should be provided as the claimant is sure that they had not changed since then.

The judge very helpfully made a direction that the Sec of State should provide these papers and adjourned the hearing. In due course we got an additional sub that firstly apologised for the delay as the papers had been hard to track down but then saying they were not under any obligation to hand them over and were not going to do so.(so0 why spend so much time tracking them down?) The judge at the second hearing was quite put out by this apparent disregard for a direction but as my client was anxious to get the matter over and done with we did not pursue it and won the appeal anyway.

I would be very interested to know if anyone else has had such a strange response to what seems to be a pretty straightforward request, even if there is some support in law for the decision to end ESA not being a supersession of the original decision to award it and the reasons for the previous decision not being relevant (which I think was what was being suggested, although I can’t remember the exact details) I would have thought it was just routine to provide a previous medical and not something that should cause any fuss.

Certainly had the same sort of issue here. Generally get the earlier ESA85 but what I have had a problem with is where scored less than 15 points before (in both cases, scored “0”), then decision revised by DWP on appeal without going to tribunal. We have asked for copy of revised decision, and submission as to why those descriptors or reg 29 (as the case may have been) no longer apply.

In one case DWP provided ESA85 but said they had no trace of revised decision (which obviously came later). They made late submission that “no store can be held in [sic] a previous decision from 2 years previously as Mr T’s condition is most likely altered in this period” . This was despite evidence from GP that “I am afraid his anxiety and depression is unchanged compared with 2009”.

Hearing last week was adjourned because client unwell but I was going to press for some further direction at least.

In other case, tribunal adjourned and directed that DWP must comply with earlier-direction to identify grounds on which earlier revised decision (to put in WRAG) made, and in what way evidence shows that the descriptors awarded no longer apply (client has Aspergers).

Thank you both, no previous ESA85 in this case.  I was really just trying to find out what the legal standing of the ESA85 is (if any).

Although not directly ESA85 specific, there is some case law that may be helpful to the extent of principle (I saw this cited by another poster relatively recently).

In CIB/0378/2001 (starred 72/01), it was found that earlier medical reports are to be put before a Tribunal where comparisons (between reports) are relevant:

http://www.rightsnet.org.uk/pdfs/cmmr_upload/cib/cib3782001.doc .

As an aside, I just love the DWP’s assertion in sovietleader’s case that it is “most likely” there has been an alteration in someone’s health.  Utterly laughable.  Actually, contemptable.