IS > ESA WRAG appeal - Passed WCA on scutiny no descriptors identified by DM

Hi All

I have something I have not come across before any thoughts welcome.

Client reassessed from IS to ESA, completed ESA50 and HCP determined (no assessment) that client had a ‘significant disability’ but did not meet the LCWRA criteria, she was placed in the WRAG - she has appealed.

The decision refers only to the process to be followed e.g. regs 19 and 34 but DM has not identified any Sch.2 descriptor or reg.29 that applies to the client.

I have a couple of questions…
1.  The HCP states that the ‘available evidence’ (ESA50, MRI and medical letters confirming diagnosis and location/cause of pain and fatigue) suggests that client has LCW but not LCWRA.
As the only evidence is that provided by the client and the ESA50 clearly states 25-30 metres is the point at which significant discomfort starts and she needs to stop, and the medical evidence supports the fact there is pain on what basis can/does the HCP and by extension the DM have for disputing this?
I have looked at the DWP A-Z of health conditions and there is nothing there that challenges the client’s assessment of her abilities.
2.  Can a DM put someone in WRAG (determine LCW) without clearly stating which descriptors or reg.29 applies?

FYI: Client has Shueurmann’s disease, Fibromyalgia, IBS and anxiety/depression.

Thanks for any thoughts.

If it can be proven your client “cannot mobilise 50 metres….etc” then the support group should be ok, however Jobcentre Plus decision makers can be a law unto themselves with regard to ignoring their own rules. I currently have a client who has been refused ESA completely, even though JC+ have acknowledged in his file that he has a DS1500 certificate which should mean automatic support group.
After requesting a reconsideration to disallow ESA they still reckon that Jobseekers allowance is the correct benefit as he has no limited capability for work whatsoever!
Unfortunately my client will probably have died by the time the tribunal takes place.

Benefits Adviser have you complained?  We have had a similar case recently which, when we complained was sorted out quickly for the client and the support group paid, no need for Tribunal.

Thank you for the above thoughts and I will run with the argument that client meets descriptor one but I really want to know .....

Altered Chaos - 28 April 2012 12:15 PM

Can a DM put someone in WRAG (determine LCW) without clearly stating which descriptors or reg.29 applies?
quote]

Altered Chaos - 30 April 2012 01:21 PM

Thank you for the above thoughts and I will run with the argument that client meets descriptor one but I really want to know .....

Altered Chaos - 28 April 2012 12:15 PM

Can a DM put someone in WRAG (determine LCW) without clearly stating which descriptors or reg.29 applies?
quote]

I’ve come across the same situation in an appeal I’m preparing for later this week, and think the answer is they don’t need to work out all of the points. The decision needs to be notified (or it would have no force or effect - ‘Anufrijeva’ - House of Lords), but beyond Harrington’s recommendations for greater transparency I can’t see anything in law that says the determination that underpins the decision has to be notified.

There are some situations where it might actually be appropriate not to notify the claimant of the determination, for example Reg 20(a) if the client has told their GP they don’t want to know the prognosis…

In this case though the DM is effectively saying ‘we know from previous evidence they’re over the threshold’.

Reg 19 (3) says:
“Subject to paragraph (6), for the purposes of Part 1 of the Act a claimant has limited capability for work if, by adding the points listed in column (3) of Schedule 2 against any descriptor listed in that Schedule, the claimant obtains a total score of at least—” etc

So if the DM determines the score to be ‘at least’ 15 points, reg 19 is satisfied. Tribunals often do the same - once they’ve got 15 points they stop counting…

That doesn’t mean that a tribunal isn’t going to want to see what evidence the decision was based on…

[ Edited: 30 Apr 2012 at 05:12 pm by Inverclyde HSCP Advice Services ]

I totally agree but what I am finding odd is that the SSWP submission has detailed no points or reliance on reg29 at all - it merely states the client is ‘significantly disabled’.

Bob’s your uncle - done!  Well if that’s all there is to it why both with an ESA50 or WCA at all.

Mine is an IESA rather than CESA.

Altered Chaos - 28 April 2012 12:15 PM

Hi All

I have something I have not come across before any thoughts welcome.

Client reassessed from IS to ESA, completed ESA50 and HCP determined (no assessment) that client had a ‘significant disability’ but did not meet the LCWRA criteria, she was placed in the WRAG - she has appealed.

The decision refers only to the process to be followed e.g. regs 19 and 34 but DM has not identified any Sch.2 descriptor or reg.29 that applies to the client.

I have a couple of questions…
1.  The HCP states that the ‘available evidence’ (ESA50, MRI and medical letters confirming diagnosis and location/cause of pain and fatigue) suggests that client has LCW but not LCWRA.
As the only evidence is that provided by the client and the ESA50 clearly states 25-30 metres is the point at which significant discomfort starts and she needs to stop, and the medical evidence supports the fact there is pain on what basis can/does the HCP and by extension the DM have for disputing this?
I have looked at the DWP A-Z of health conditions and there is nothing there that challenges the client’s assessment of her abilities.
2.  Can a DM put someone in WRAG (determine LCW) without clearly stating which descriptors or reg.29 applies?

FYI: Client has Shueurmann’s disease, Fibromyalgia, IBS and anxiety/depression.

Thanks for any thoughts.

I have a case pretty much the same, clients claim was reassessed IB to ESA and placed in WRAG (no medical assessment). Client suffers from Severe Arthritis, Cervical/Spinal problems. We appealed and my case too stated the that the Decision Maker and HCP considered all available evidence which was noted as the ESA50 and rather strangely referred to a IB85 PCA report from 5 years ago (this was not included in the appeal papers) when deciding he did not have LCFWRA (unbeleivable). My client too stated on his ESA50 he could only walk 20-30 meters. I immediately sent in a rather lengthy submission as soon as i recieved the appeal papers but received no response from the decision maker. We have a tribunal in 2 weeks. I will keep you updated on the outcome.

This would appear to be standard procedure with IB migration cases - see Revised WCA Handbook para 2.6 and ESA Filework Guidelines para 7.2 on IB re-assessment ‘scrutiny’. The HCP provides an ESA85A (short version of standard ESA85) to DM who then ‘rubber stamps’ the opinion. At no point is an actual points score under Sch 2 identified. It seems unlikely that a claimant would wish to complain that this may not comply with Reg 19 or 34. Although it might assist to identify which activity in Sch 3 might apply in cases where a claimant wants to appeal against a LCFW decision to establish LCFWRA?

In cases we have seen where LCFW has been determined on ‘scruitiny’ the ESA85A simply advises “.... the client has a significant level of disability due to ....... such that they would have limited capability for work”. Although I haven’t seen one yet I assume the ESA85A can also be used to identify on ‘scrutiny’ cases where Regs 20, 26, 29 or 35 apply which can the be rubber stamped by the DM.

It is (and always has been) standard procedure for Medical Services to look at all re-assessment (inc. repeat PCA/WCA) cases on ‘scrutiny’ first. In the vast majority of cases the outcome will be HCP opinion that claimant must attend an examination and this is then arranged. Scrutiny as not a BC activity but is done by ATOS.

We are seeing a significant number of IB re-assessments where scruitiny results in LCFW but it is appropriate to appeal for support group. It is not clear from the submission whether, for example, the claimant was previously in an exempt group or passed the PCA on points.

I’ve just been to a tribunal this morning with this same set of circs. IB conversion, no medical, customer placed in WRAG, found to have ‘significant disability’ but no descriptors identified from Sch 2 nor Reg 29 found applicable, Sof S’s submission just said no applicable descriptors from Sch 3. Customer appealed to go in SG and the FTT has just adjourned the case, directing the department to provide a submission detailing the legal basis of the DM for deciding that appellant had LCW in abscence of assessment as required by Reg 19.

Of course this could lead to the appellant being required to attend a medical. Interestingly, however, the Judge said that ‘a couple’ of other cases had been referred back and the outcome was the department changing the decision in appellant’s favour without further action.

Brian Snaith - 03 May 2012 11:06 AM

I’ve just been to a tribunal this morning with this same set of circs. IB conversion, no medical, customer placed in WRAG, found to have ‘significant disability’ but no descriptors identified from Sch 2 nor Reg 29 found applicable, Sof S’s submission just said no applicable descriptors from Sch 3. Customer appealed to go in SG and the FTT has just adjourned the case, directing the department to provide a submission detailing the legal basis of the DM for deciding that appellant had LCW in abscence of assessment as required by Reg 19.

Of course this could lead to the appellant being required to attend a medical. Interestingly, however, the Judge said that ‘a couple’ of other cases had been referred back and the outcome was the department changing the decision in appellant’s favour without further action.

That is good to know and interesting the tribunals are adjourning the hearings and giving directions, as i said in my earlier post i have a tribunal in 2 weeks. Will update of the outcome of mine in due course.

My opinion is that it is a standard outcome for the HCP to advise LCFW without identifting a points score - maybe this is driven by the LiMA system which produces the ESA85A? It may well happen with non-migration ESA cases when sent for a sebsequent WCA but the numbers are so small that welfs rarely see them in appeals for LCFW to LCFWRA appeals?. Given that the stats show approx 33% of migration cases are placed in the WRAG and 33% in SG we may now see such decisions frequently.

It is a bit concerning that tribunals are adjourning these cases rather than dealing with the substance of the appeal - after all they have the power to look at the whole award and identify points for LCFW as well as consider LCFWRA. A large number of adjournments will inevitably increase delays for claimants. Perhaps this is an issue to raise at TUGS and through NAWRA etc?

In considering the above I think I am going to write to TS ahead of a hearing to ask them to direct the SSWP to “provide a submission detailing the legal basis of the DM for deciding that appellant had LCW in abscence of assessment as required by Reg 19”.  And in doing so hopefully avoid hearing/adjournment and the increased stress to client.

Just wondered if you had an update on the response you got. In my case the DM simply replied that Reg 23 says customer may be required to attend medical examination but it is only for HCP to determine whether medical examination is required and in this case the HCP had determined there was sufficient information to give opinion that claimant had LCW but not LCWRA. Fundamental flaw in DWP’s case for my customer being that only evidence appeared to be ESA50 indicating that desc 1 sch 3 applicable. Unfortunately, such decisions to place customer in WRAG and not SG without medical examination seem to be increasing leading to yet more appeals and delays. Is this similar experience elsewhere?

Cheers, Brian

hi - i am in manchester and coming across numerous of these cases now.
can anyone please give updates as to any recomendations and what happened with subsequent adjourned Tribunals?

thanks