ESA50 time limit reduced.

This seems to have slipped under the radar a little, but SI 2425/2011 has reduced the time limit for returning an ESA50 form from 6 weeks to 4 weeks.

Concerns are being raised about the impact on clients with mental health problems, learning difficulties specifically, as well as other people more generally in terms of securing supporting medical evidence and booking appointments for assistance with completion.

Disability Alliance press release on the change:

Neil Coyle, Disability Alliance Director of Policy says:

  “The Department for Work Pensions is making an already difficult process harder for disabled people and risks wasting considerable sums of public money. Disabled people who cannot get their health consultant to respond in the short time permitted may now have to attend a pointless assessment no matter how ill or what the impairment is. This wastes limited time and money and the Government should focus instead on ensuring appropriate timeframes are used and on delivering the recommendations to improve the assessment process promised last year which are not only undelivered but are now also undermined in further arbitrary time limiting.”

Disabled people face new barrier to accessing support after ‘lack of transparency’ in DWP changes

It also makes life considerably more difficult for people who want assistance with completing the form, given that advice services are getting more and more stretched and claimants may have to wait several weeks for an appointment.

I flagged this change recently in this thread http://www.rightsnet.org.uk/forums/viewthread/2112/

As mentioned there, previous caselaw would suggest that 4 weeks means 31 rather than 28 days.  And bear in mind that the 4 weeks is the earliest possible deadline.  It won’t necessarily be “the” deadline in every case.  The deadline will be longer if a reminder letter is not sent out after 3 weeks.  The real deadline is one week after whatever date the reminder letter is sent.  The law does not allow a reminder to be sent until at least 3 weeks have elapsed since the ESA50 was first sent.  Hence, the earliest deadline is 4 weeks.

I interpret the change as follows:

ESA50 sent on 1/11/11 (note, the new deadline only affects ESA50s sent after 31/10/11). 

The earliest a reminder letter can be sent is: 23/11/11 (ie when counting the 3 weeks you ignore the 1/11/11 as that is the day the ESA50 was sent and you also ignore the 22/11/11 as that is the day the 3 week limit expires). 

In counting the one week limit in the above example, you ignore 23/11/11 as that is the day the reminder is sent and you ignore the day on which the one week limit expires (ie 30/11/11).  Therefore the ESA50 needs to be returned by close on 1/12/11.  In other words 31 days since the ESA50 was first sent. 

The caselaw is R(IB) 1/00.

A client whose ESA stops for failure to return the ESA50 within time should be advised to re-claim ESA immediately.  The 6 months’ rule will prevent payment on that new claim until he sits a new WCA, or the 6 months expires, or he returns his by then late ESA50, whichever is the earlier.  So clearly, the quickest way to be paid on the new claim is to submit your late ESA50.

I had a tribunal recently where the client had answered every ESA50 question by ticking the “no” box so that it seemed he had no problems.  The tribunal accepted that he had done so to avoid missing the deadline for the return of the form and so did not consider it adverse evidence. 

It may be necessary to advise clients (perhaps over the phone) to simply tick “yes” to the ESA50 questions that potentially apply and leave blank the boxes that allow you to add more info on your limitations.  Otherwise some orgs may not be able to see clients in time to help them complete the form. 

However, there’s some anecdotal evidence, at least from my own and some colleagues’ clients, that properly completed ESA50s are being given more consideration than normal by DMs in migration cases to the extent that several clients have been converted onto ESA from IB without having to attend medicals.  So migration clients might be an exception to the above form-filling approach.  But for the majority of standard ESA clients, how much does the ESA50 really influence the DM? 

Also, I see from another Rightsnet thread and news story that DMs may start increasing requests for tribunals to strike out appeals on grounds of “no reasonable prospect of success” and it occurs to me that they may do this more in cases where the claimant has given little info in his ESA50.  But that would be a bit rich of them wouldn’t it?.  Reducing the deadline for completing the ESA50 and then asking for a strike out when it comes back with less info on it than it used to.