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“Clinical information contained in the ESA report to support the DLA decision”
Hello everyone
I’m just going through an appeal bundle and the only evidence that DLA used was the ESA medical ; they used the wording which I have used in this title. I have a psych report and nothing as yet from the GP despite chasing every week since August!
The client is waiting for both her ESA & DLA appeal dates so I do not have the pleasure as yet of a hopefully successful ESA appeal decision for my DLA submission. I know that I can send a further submission later but I’m interested in caselaw that basically states that the ESA “clinical info” was flawed etc etc and should be disregarded for DLA.
Any advice? I sadly no longer have the Derbyshire CC caselaw bible which I always used for submissions…
Many thanks
Jo
We are noticing the use of the ESA medical for making DLA decisions. I have recently had success with an ESA appeal where client got 18 points but was awarded none in the WCA . They used the same WCA to end his DLA and we have that appeal in Thursday. I submitted the ESA decision notice with my submission and will take note of the Tribunals reaction and feed back to you.
Thank you & good luck! :)
They really shouldn’t be using ESA reports, especially when they have been overturned at appeal. I tend to use CIB/1639/2009 when writing submissions where this has been done. The Judge states that the “statutory framework in relation to the Personal Capability Assessment is materially different” from that of DLA. Usually, they get adjourned for EMP’s as a result of this.
Peter
Alex : we all know that the criteria for DLA / ESA are different and that they shouldnt use ESA85s, however we all know that they do. This CIB/1639/2009 thing is important. Can any pressure be brought to the Disabilities and Carers service DMs to get them to stop this disgusting practice?
Ive lost count of the amount of DLA revisions i have had to request following refusals/removals of DLA awards following their ESA medicals. Bear in mind over 40% of ESA appeals are overturned anyway, so there must be a way of getting these DLA refusals stopped on the basis of WCAs until at least the FTT make a determination following appeal.
Any ideas would be welcome.
Totally agree. DM’s are turning around DLA claims in less than 7 days (I’ve had 2 days!) just using ESA medicals. I’m now telling clients to expect a refusal if they have already failed their ESA medicals. Even the ones that do pass their medicals and then claim DLA are sometimes refused! I’ve had really old medicals used - 8 mths before claiming DLA too. This practice has to stop.
What really gets to me is that whenever you send in a copy of a DLA medical examiner report to highlight inconsistencies with an ESA assessment the DWP submission will always brush this evidence aside by highlighting the very different eligibility criteria that apply to the two benefits. What’s good for the goose should be good for the gander.
Case law helps but I’m not convinced you always need it.
1) The tests are materially different. Tribunals do know that but you need to highlight the specific differences.
2) There is a big difference between clinical findings, which are measurable things and anecdote and assertion e.g. “should be able to walk 200 yards” for example. Such reports are easy enough to pick apart on that basis.
3) I occasionally used a table format e.g. claimant says this; ESA medical says this; DLA medical says this; consultants say this and so on. Sometimes it’s for my own benefit to clear my own head and sometimes it goes into the appeal bundle because the differences and contradictions are so stark that it just speaks for itself.
4) A tactic worth considering is the use of those magic old words “de minimis”. Ask a tribunal member to show the difference between 10m and 15m in a tribunal room. Less if it’s a smaller room. They won’t be able to do it with any precision at all.
Walking into a tribunal room with a trailing tape measure from the door is an excellent albeit idiosyncratic entrance. Leave it on the floor and then explain you want someone on the panel to estimate the difference between and then show them what it actually was. They’re generally out by at least 50% as we all most likely would be.
The point is that the various reports may have different info. 6-7m here; 30m there. On paper that looks like a difference of some magnitude. In the real world it’s negligible and most people are unable to distinguish so differences between what the claimant said in their claim pack; to a HCP; to an EMP; their GP can be shown to not be contradictory but rather in the normal range of human beings usually abysmal attempts to estimate distance.
Very difficult for tribunals once you’ve done that :)
Update on appeal for DLA.
The Tribunal was adjourned in order to get a HCP report for DLA and medical records so live to fight another day. Tribunal panel was not the best of faces so this was a good move for my client.
Thanks for case law signposting though folks.
Mike’s suggestion might work occasionally, but isn’t guaranteed.
At one of our local venues claimants are frequently asked about their ability to walk across the car park to a particular building on the opposite side of the car park. A Statement of Reasons I once requested revealed that the distance had been measured at 110 metres.
I have a smiliar case to this - we won the ESA appeal but DLA has now used the ESA 85 to reduce DLA on renewal ...
Please can someone send me a link to decsion CIB/1639/2009 as I am having trouble tracking it down. Thanks!
There is a Commissioner’s Decision on the distance from Sutton railway station to the tribunal venue at Copthall House (196 metres, as far as I recall).
Thank you :)
Classic,
A client has just brought in a DLA refusal letter.
“I made my decision using the information about your illnesses and disabilities from;
your claim form
the health care professional who examined you on 20/03/2012.
The application was made on 16/10/2012.
When a client approaches me for assistance to complete a DLA renewal, or new application form shortly after an ATOS medical which has been followed by an unfavourable decision, I enclose a covering letter with the DLA form highlighting that we understand that it is common practice to use the ESA85 as evidence to decide DLA entitlement, and pointing out that the ESA decision is under appeal and (where applicable) the client disagrees with many of the factual findings within the report (which is nearly always the case). I request that this evidence is therefore treated with caution and that the GP/Consultant etc is also contacted for their own report, as was the case before many of the automatic refusals on the basis of the evidence from the ESA85’s.
The DWP have always agreed to this so far, and even if the decision is not in the clients favour in the first instance, there is at least then extra evidence from sources other than ATOS within the submission available to the Tribunal if it needs to go to hearing. This can be really valuable when increasingly we are not getting responses from our own requests for medical evidence, or when a fee is requested that cannot be met by the client.