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

Unsuccessful ESA appeal

AndrewP
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Advice and Support, Gateshead Housing Company

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Client has a back and neck injury and a stomach condition which mean that he can walk only a limited distance, and he is insistent that he cannot travel in cars or taxis– the act of bending down to get in a car is impossible for him and can trigger a panic attack. He never leaves the house, and when he has to attend hospital appointments he always travels by lying on a stretcher in an ambulance. He says that travel by bus is out of the question.

When he missed appointments for both his PIP and his ESA assessments, both of his benefits were stopped.
Prior to the scheduled dates of his assessments for PIP and ESA he had repeatedly told the DWP that he wouldn’t be able to attend his assessments, even in a taxi, but the DWP had repeatedly responded by offering transport via taxi. He had then missed both assessments and had his benefits stopped as a result.

PIP accepted client’s reasons for not attending, and he was reassessed with a home visit, after which he was awarded the Daily Living Component (standard rate).

For ESA, client was advised that he had to appeal by showing that he had good cause for failing to attend.
He was told that he couldn’t claim ESA pending the hearing as no assessment of his capability for work had taken place. Instead he would have to claim JSA for an extended period of sickness. He wasn’t able to make it to the Jobcentre for the initial assessment, so received no JSA prior to his appeal.

He got medical evidence to support that his case that he had good cause for failing to attend the assessment – his GP wrote that the client would find it extremely difficult to attend an assessment and that he was unable to travel in cars, instead traveling by lying on a stretcher in an ambulance.  Information on the nature of his medical condition was also submitted.

Client insisted that he wasn’t able to attend the tribunal for the same reason that he had missed all his appointments. He got help to make a written submission for a paper hearing rather than attending. He has now received a letter advising that the appeal was unsuccessful. He hasn’t been given a statement of reasons and has been advised to ask for this.

Client is distraught at the outcome and determined to take it further. He also hasn’t had any income aside from PIP, HB and CTS for some time. Can anyone suggest where he can go from here?

Thank you for any help.

SamW
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Lambeth Every Pound Counts

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My 2c…

The tribunal decision seems harsh if you have GP evidence backing up the client’s claims that he cannot travel by car. Although I know that you can get wheelchair accessible taxis where he would already be seated before getting in and wouldn’t have to do the bending. Obviously this is only of any use if he already has a wheelchair, it wouldn’t seem practical to expect him to get a chair for such a specific purpose.  Obviously if he is upset with the decision the thing to do is to request SoR and look for error of law with a view to going to UT. However practically this is going to be a long process during which he’ll have no income apart from his PIP.

That waiting period will also be longer than the 13 weeks he’d get on an extended period of sickness on JSA so even if he was able to get to the Jobcentre to get that up and running it would not seem to be much of a goer.

So really for me the best option in the meantime (alongside any appeal to the UT) would be to make a new claim for ESA (it is worth backdating it 3 months still as this will ensure that his component starts sooner once he is assessed). The information he has been given is incorrect - there is nothing stopping him from claiming ESA, he just won’t receive any money until he has attended a medical. I would get the claim in and then try and liaise with Maximus/any WCA liaison contacts you have at DWP to try and either get a paper assessment or to arrange a home visit this time round in the light of the supporting evidence from his GP. If you haven’t already done so it is definitely worth checking to see if he has had any contact with mental health services to try and address the panic attacks.

The only problem you might have with this approach is that if you are dealing with somebody unsympathetic then the essential conclusion of the Tribunal is that he is able to attend a medical and should do so. So you might find that they are reluctant to agree to a HV. From the sounds of it though the poor guy is in a real state and so if you can get enough medical evidence in front of somebody senior enough to use their initiative I’d hope they’d be able to do a paper assessment and avoid the whole issue of attending the medical.

[ Edited: 20 Jun 2017 at 06:50 pm by SamW ]
Mike Hughes
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Senior welfare rights officer - Salford City Council Welfare Rights Service

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Just off the top of my head.

It strikes me that the FTAs should never have occurred as the client will have been covered by EA 10 and entitled to reasonable adjustments.

It also strikes me that a limited capability for work decision for someone who would only be able to travel to work presumably on foot or in an ambulance will not be a difficult challenge.

In terms of a new ESA claim it will be important to ensure that the EA 10 request goes in with the claim and is part of the claim pack as well.

AndrewP
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Advice and Support, Gateshead Housing Company

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Thank you for these replies.

Tom B (WRAMAS)
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WRAMAS - Bristol City Council

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Further to other answers - just to highlight that if 6 months have passed since FTA WCA decision was issued your client could make a new claim and be paid at the assessment rate.

Daimo65
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Welfare Rights Southway Housing Trust

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I would argue based on your summary that this is a perverse Decision in that no one acting in accordance with the law and present with this evidence would have arrived at the same decision.

Having regard to EA 10 and the meridian of case law available this Tribunal seems to have a flagrant disregard to the law in all spheres.

Presented in a correct way it may not have to go to Upper Tribunal as a judge may set the decision aside (if common sense proves )

Pete C
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A bit of a long shot but could it be argued that it would have been in the interests of justice for the Tribunal to seek evidence from the appellant by way of a telephone hearing and adjourned the first hearing to offer the gent the chance to give his own evidence in that way.