DLA decisions using ESA medical reports

I have noticed a worrying trend recently for DLA DM’s to use ESA medicals to refuse an awrd of DLA.
One client has had DLA refused based on an ESA medical report dated over 12 months before the DLA claim was even made. The ESA report was found to be” unsafe” at an ESA Tribunal, which was also heard before the DLA application was made. _ Appeal lodged.

Another client has had dla refused using an ESA medical. This client has severe and enduring mental illness, CPN Psychiatrist, not seen the ESA medical yet but suspect the ESA health care “professional” has misdiagnosed by a long way. Again appeal lodged

We were recently shown around the DLA offices in Blackpool.  A thoroughly enjoyable day out, I must say. 

The most surprising part of the day was that the administrative assistant who input the details of the claim when they were first received in the office, would then routinely check for an ESA report (on some DWP system) before sending the papers on to a DM.

We were assured that if the ESA decision had itself been appealed, it would not be used to assist the DLA decision maker.

That said, there did not appear to be an effective way of finding out if ESA had been appealed or not.

The justification given for using these older medicals is that if the claimant answers the question in the claim pack “tell us when these problems started etcetera”  with for instance “for about a year” then that older evidence becomes relevant. As in most cases there is no question of backdating all you need to put on the claim form is the minimum needed to establish qualificatiion at date of claim and that removes the justification.

Thanks Chris, but the problem is that the ESA medicals are being overturned with unerring regularity for mental health cases.
We have not lost an ESA appeal yet where mental health is the only issue.
I believe the Atos assessors havn’t got a clue with mental health and are using their own personal predudice to influence their opinions. They seem to be particularly confused about the difference between depression and being depressed.

Hi,

I seem to have a memory of a decision that could be used to argue that IB medicals should not be used for DLA… Does any one know what this decision was or if it even exists!

I have also noticed this trend of using ESA decisions for DLA decisions but have had cases where the ESA is being appealed yet is still used for the DLA decision.

My handy Derbyshire DLA caselaw pack has a few decisions about ‘cross benefit evidence’.

CDLA/5803/1999 (*33/01) advises that walking ability can be differently assessed for all work test and HRM DLA (although an AO was entitled to make use of evidence - just needed to make sure it is properly comparable).

CDLA/3896/2006 alerted to shortcomings of tribunals looking only at activity 1 and box 12 on IB85s.

CDLA/2998/204 - came up with principles of use of evidence - medical reports can fairly be used in connection with other benefits, and in some cases fairness meant they should be available, and if not available but findings at issue, tribunal should obtain it before reaching a decision.

Perhaps there are more.

another one:

CIB/1639/2009 which supported that ‘there are dangers inherent in trying to impose the conditions of entitlement to one benefit on another’ and held that medical evidence obtained in connection with one benefit when used for a claim or appeal for another benefit ‘must, however, always be viewed in the context of the evidence as a whole and must be used with particular caution, bearing in mind that the legislative framework will inevitably be different.’