Assessment rate ESA for nearly 5 years
Client applied for ESA February 2013 but the DWP never undertook the WCA until someone finally realised and she was sent the ESA50 questionnaire and then had her assessment in October 2017, so she remained on assessment rate ESA until this point.
She failed the WCA and I am assisting her with challenging this. We are waiting for a decision on the MR but I’m expecting this will go to appeal so I am considering how this will be approached.
I know that we need to concentrate on whether the October decision was correct however I cant see how the previous years can be ignored. I am struggling with what to do with this earlier period of nearly 5 years. Her medical certificates show she claimed with a different health problem initially then 3 months later her medical certs changed with another condition. I have her medical records which also show numerous other health problems which could have led to difficulties with completing activities of the WCA during this 5 year period.
Has anyone had a large period between claim and negative decision on a WCA and how did you approach the appeal?
Not seen this.
Not sure if there is anything to be concerned about - I cannot see that the WCA will not apply from the 13th week of the claim as it would at any other case.
Likewise I don’t see the new conditions occurring before the WCA being an issue. see below**
The important thing for these purposes is the decision and the date of;
SSCBA 1998 12 (8) In deciding an appeal under this section, an appeal tribunal—
(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.
** the ‘disadvantage’ would be that those new conditions would not be of assistance in reclaiming ESA as they’ve been taken into account at the assessment.
We had a similar case but client had been assessed and decision made that he was not entitled but then the DWP admitted they had lost the paperwork at appeal stage so never gave any more money than basic rate of ESA for about 5 years. We obtained medical evidence for the ‘lost period’ which like your case suggested that he should meet a descriptor under schedule 3 and argued ’ what evidence had the DWP used to demonstrate that he was not entitled to ESA ? The panel carefully considered the medical records because this was considered to be a more accurate record than rely on the appellant’s memory and accepted our argument that DWP clearly did not have the required evidence and based on the latest evidence that he should be entitled the the difference between the basic allowance and the support component for all this time. I hope this helps.