ESA50

Hi
I was at a tribunal yesterday where my client did not receive ESA50 and his WCA lasted 15 minutes.  The case was adjourned due to technical issues but judge asked me to find out if medical practitioners are given ESA50 prior to WCA.  I can’t find if this is laid down in law as some clients do not return them and WCA goes ahead.  Is there any legislation on this?

From the WCA handbook:

Reading the Documents
In preparation for the interview, you should read carefully the documents in the
file /on MSRS. All the medical evidence should be considered, including any
medical certification, Factual Reports, previous papers and other documents,
including Tribunal documents. Particular attention must be paid to the current
claimant questionnaire [ESA50] and all areas where the claimant indicates that
there may be a problem must be fully explored. At times the claimant may also
bring additional evidence to the assessment. Any evidence bought by the
claimant must be read and the report should make reference to the evidence
that has been considered and justification provided if there is a conflict between
the opinion of the HCP and the other medical evidence.
Medical Services
Any evidence brought by the claimant, should be copied for the Decision Maker

Heres a link: http://www.dwp.gov.uk/docs/wca-handbook.pdf

Anne Higgins - 19 October 2011 08:30 AM

... some clients do not return them and WCA goes ahead.  Is there any legislation on this?

Reg 21(2) ESA Regs allows the DM to waive the need for an ESA50 if he feels he has sufficient info (eg sick note, ESA medical) to determine whether a person has limited capability for work. 

Your DM had a sick note and a medical lasting 15 mins.  Would be a bit harsh to ask for an ESA50 now if one wasn’t previously provided, not least because the claimant has the chance to provide orally at the tribunal the answers that he would have given in the ESA50.

Note the amendment to the ESA Regs from 31 Oct 2011 which allows the DM to treat a person as not having LCW for their failure to return the ESA50 within 4 weeks of being sent it.  It was previously 6 weeks.  That change applies to ESA50s issued after 31/10/11.

However if R(IB) 1/00 remains good law for ESA (and there is no reason to suggest it shouldn’t) then 4 weeks above effectively means 31 days not 28 days when you account for the reminder letter that needs to be sent to the claimant after, from 31/10/11, 3 weeks.