Wrong ESA test

ESA 50 completed in Jan 2011 for ESA I.

ESA85 completed August for ESA II.

Wrong test applied to first time claim therefore the medical is of little or no use.

Is my understanding correct?

I’ve got one of these going on at the moment. 

For separate reasons the first hearing was adjourned and in the meantime the DWP have sent the client another ESA 50 with the post March descriptors and a request to contact ATOS about a new medical.

When we asked about this they said that it was as if the first decision had never been made and if the claimant passed the new medical the award would be backdated to the first decision.They also sent a letter to the Tribunal Service to say that the appeal had lapsed due to a ‘more favourable decision’.

As this was a matter that was already in front of the Tribunal we have asked for Directions as to;

i) Whether the original medical was valid at all.

ii) Whether the appeal should have lapsed as it seems hard to see how being asked to go to another medical is something that is ‘in the appellants favour’

iii) Whether the Sec of State has the power to ask for another medical unless he has already determined LCW, and we have argued that he can only be said to have determined this if the claimant has passed the medical.

I must say that the root of this confusion seems not be the DWP but ATOS, when the DWP realised the medical had been done under the wrong descriptors they sent it back to ATOS for re working. According to a memo in the appeal papers ATOS simply refused to do so , saying this was ok provided the HCP included some sort of memo by way of explanation. Unfortunately ther is no such memeo in the papers.

I’m thinking that the only logical solution is to request she be treated as having a LCfW under 29 allowing the DWP to do a retest immediately under the correct procedure.

DWP may not wish to do this as it took ATOS a number of attempts to get the medical completed first time.  However, there’s no ESAIII scheduled in next few montths (I think.)

Could try with a big stick/special payments for delay, but in this case it could be watered down by the claimants inability to attend on scheduled days therefore offsetting any cause from ATOS/DWP to claimant.

I can’t see any way of legal redress using the regs as they support a LCfW from the date of the actual assessment. Unless I’m reading it wrong…...

Thanks for your thoughts.

To my way of thinking they should not be able to lapse the original appeal as it was not a more favourable decision, they do of course have the right to review that decsion but to my way of thinking this does not include asking the claimant to undergo another medical.

This in turn leads to the question about whether the medical was ever valid and if it wasn’t then there is little or no evidence of not having LCW and our appeal is likely to succeed.

It seems to me that the only way forward is for them to award ESA for the original appeal and , as you say, immediately ask for another medical.

I must say that I have some sympathy with the DWP’s position, in small way they seem to be victims of what looks like ATOS’ intransigence. I had always imagined that if a DM said to ATOS ‘this is the wrong test, could you do it again’ ATOS would just do it again, after all it was their mistake in the first place. It would no doubt have been galling for the claimant to have to undergo another medical but it would probably not be as galling as the current confusion.

You are right on the ‘lapsing’ of the appeal.

Its a decision to the same effect and not one that is advantageous.

therefore can’t see how it can legally, be lapsed.

The truth has got lost in the beauracratic nightmare of administration.