Client wins appeal on ESA claim but meanwhile fails WCA on fresh claim due to deterioration!

Hi all - just wondered if anyone else has had this scenario.

Client failed WCA in Jan 2010 (scored 6 points)- lodged appeal and continued on assessment rate.

Meanwhile, client’s health (both phtsical and mental) deteriorated. I had no idea when the original ESA appeal would be heard and given that you cannot take much for granted in an ESA appeal, took the view that it was best to make a fresh claim due to deterioration, in the hope that she would now pass a WCA and the original ESA appeal would now be for a closed period prior to the fresh claim.

Silly me! We won the ESA appeal on the original claim on 07/03/11. Meanwhile, client had decision letter dated 05/03/11 scoring 0 points on her WCA due to the fresh claim - despite the deterioration she now scored less than on her original claim!

I had something of a battle with ESA in the first place to accept the fresh claim - at first they insisted that she would have to withdraw her appeal on the old claim but I managed to persuade them otherwise.

The papers are not back to ESA from the Tribunal - I have faxed them a copy of the decision but they refuse to action the Tribunal decision until they get the file from the Tribunal Service.

So meanwhile the client’s ESA has stopped, as she was being paid on the fresh claim - they now want her to appeal the latest WCA failure. I have been told that the DM will not automatically supercede the fresh claim and reinstate the original claim, due to the negative WCA that has happened since.

Any ideas gratefully received!

This is fairly typical in my experience and a total waste of public money to boot (leaving aside the client’s perplexity).  Might be worth looking at the WCA report to see just how adrift it is from the evidence used at tribunal and seeing if it falls well below professional standards.  We raised the issue of the ESA merry-go-round on behalf of a client and the minister indicated in his response that he thought tribunals could set the next WCA assessment date as part of their decsion making, which of course they can’t. 

I do hope Prof. Harrington is looking at this issue for his second report.

You have little alternative but to appeal the new decision.  You can of course use evidence from the tribunal.

I also think you will need to appeal the new decision. 
The tribunal have decided that your client passed the test based on her condition at January 2010.  There decision says nothing about her condition now.  The ESA office can use the new medical to decide she must have got better.

Thanks for the replies - just to let you know that ESA have been reasonable and have reviewed the claim following the successful Tribunal on the first claim - they have superceeded the fresh claim and failure of the WCA on this claim, and paid all arrears due.

However, they couldnt resist saying that she will be referred for a new WCA within a few months!

Hi
I had a successful appeal recently but the judge made the comment that although the apepal was successful she and the doctor felt that tghe client would fail a new WCA so told her to get ready for work! As her condition is at least no better than her original WCA date I found this comment very surprising. I have made a formal complaint regarding the doctor and her personal opinions and unprofessional manner.

Perhaps the Judge was thinking about the new WCA descriptors with the wheelchair test etc.