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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

ESA Review Decision without face-to-face assessment and before outcome of successful Appeal

EPC
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Welfare Benefits Adviser, Lambeth Council, London

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Total Posts: 13

Joined: 18 June 2010

Client placed in WRAG group back in February 2011; decision was appealed. In December 2011 client received ESA review form whilst still waiting date for Tribunal. Completed and returned; no further contact.
Appeal heard February 2012, successful, placed in the support group. Tribunal noted that their decision was partly made on their own observations. Client had a stroke and suffers extreme dysphasia. Even when writing his dysphasia causes him to write the wrong word - this was also noted by Tribunal on their decision notice also.
Arrears paid to client from February 2011 but then it was realised his weekly amount had not been increased to take acocunt of support group.
Call to Job Centre illicits the following information:
- he was assessed after 12 months as this is the policy. (client does not recall a decision letter)
- ‘ATOS’ made the actual decision to place him in the Work Related Activity Group.
- pointed out ATOS are NOT decision makers and only a Decision Maker can make such determinations, officer replied, NO ATOS had made the decision without a face to face assessment.
They suggest client appeals again against decision to place him in the WRAG.
This client cannot go through another year of waiting on an appeal outcome. His condition is detriorating and long tern prognosis is poor.
Separately how do we ever close a client case if we are forever on this merry go round of decision/appeal/review decision/tribunal decision?
Is there a way to use the observations noted in the tribunal decision notice to get this decision revised given that those observations happened after the review decision (that was made without seeing him)
We have requested an any grounds and an anytime revision - although the officer advised that no such things existed. He and his colleagues had worked here for 10 years and never heard of these things!

Domino
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Advice Support Project, Lasa

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Total Posts: 121

Joined: 28 June 2010

As the appeal was against a decision to be placed in the WRAG, rather than an appeal against not having LCW, reg. 147A of ESA Regs would appear not to apply, meaning they could reassess whilst the appeal was ongoing.

I would request a copy of the alleged decision notice, which would clarify if a decision was made by a DM and when.  Although the observations at the tribunal may throw light on the situation, the Tribunal can only make findings of fact based at the time of the decision under appeal (i.e. Feb 2011).

The DWP are tending to reassess every 12mths, and there have been other threads on rightsnet on this issue.  The problem of course is that it can take a year before the appeal on a decision is heard, and the whole thing, as you say, becomes a merry-go-round.

As client was successful on his appeal, would he not be entitled to arrears of support component, at least up until the date of the alleged new decision?  Any one any further thoughts?