Missing ESA50

Office has had recent case where the clients ESA50 was not included within the DWP submission papers. Apparently could not be found despite “exhaustive search”. At tribunal it was asked that the refusal decision be overturned and a new WCA be carried out on the basis such a vital document was missing. Tribunal rejected this and proceded to uphold the SOS refusal decision.
In the statement of reasons the request by the representative is noted and the Tribunal express their opinion that the missing ESA50 is “deeply unsatisfactory”. However they decided to continue with the hearing “in the interests of justice and fairness…as they could hear direct evidence from the appellant”.

Do folk think there is a stong argument for an appeal to the Upper Tribunal???

Should be added that the hearing was 18 months after the completion of the ESA50!!!

Hi

I don’t think this would be strong enough grounds. I presume you identified the descriptors anyway and argued them with the appropriate evidence. Often clients will not complete the ESA50 in a way that highlights the strengths of their case anyway due to the limitations on the form. Tribunals love to pounce on any inconsistencies in the ESA50 so it can often be more of a hindrance having it in the appeal bundle. Getting a new WCA now would not shed any light at what your client was like at date of decision.
I would see if there were any other grounds for a further appeal.

I am surprised DWP didn’t overturn the decision themselves. I had a case of lost files in Bathgate. DWP just deemed everyone LCWRA for a year. Once it proceeds to tribunal, the tribunal should, in theory, have sufficient expertise to make a determination on the basis of oral evidence, as this is generally the basis of the ESA50 anyway and this document is really a guide for the tribunal and not essential to the bundle.

Provided the tribunal exercised its inquisitorial duty to identify appropriate descriptors (whether raised by you or not) and decide their application, I suspect it’s in order. Still, that said, you may wish to give it a go anyway and see where it gets you - do report back if you meet with any success.

Doesn’t it depend to a degree how much the DWP submission relies on the information within the ESA50? If the Tribunal are relying on that submission as part of their reasoning for confirming DWP decision, then it must surely be a breach of natural justice if the document used as, at least for part of, justification for the decision wasn’t available to the appellant?

If the Tribunal has taken as factual something in the submission that was based on evidence that was not included and not asked the appellant about it to identify whether it’s accurate or not, then you could take that to the UT.