Lack of mention which descriptors apply after IB conversion

Hello all,

On more than one occasion I have noticed that DWP do not specify which Sched 2 descriptors (or exemptions) apply having ‘converted’ the claimant from IB onto ESA. This is of particular relevance when arguing a change of circumstance to allow Supersession to Support Group or to argue Support right from the start.

At a recent Tribunal, for Contrib. ESA I wished to argue that Support was appropriate from the start, when only WRAG was awarded. No descriptors/exemptions for either Sched 2 or 3 were identified at any point within the papers, although the DWP submission confidently stated that the Decison Maker had considered Sched 3 and none applied. I checked with DWP, and they confirmed that no descriptors were actually recorded on the file either.

In my Submission, I argued that given the overlap between Sched 2 & 3, mobilising being the obvious one, without details of which Sched 2 descriptor/exemption applied, it was impossible to establish that DWP had properly considered Sched 3 and those exemptions.

Unfortunately due to Tribunal admin issues my Submissions were never forwarded to DWP before the Tribunal. The Tribunal adjourned the hearing so DWP could have sight of these, and for an ATOS assessment of client (irrespective that this will be a year later than the claim date!)
Tribunal effectively warned client that the decision to award ESA at WRAG might be overturned, alluding to the fact that DWP appeared to have failed to consider the Schedules.

In another similar case, where I argued for Support Group (but was awarded at recon stage, so hearing unnecessary,) I was told by DWP that there is no need for DWP to list the relevant descriptors ‘when it is obvious that the claimant qualifies for ESA’ having gone through the conversion process. (But how can it be ‘obvious’ if no mention of descriptors is actually made?)

My view is that DWP can not award ESA without descriptors or exemptions applying. Therefore any such decision could be unlawful. If so, it could be argued that the claimant reverts to IB.
With the adjourned claimant, 365 days -ESA will be likely to have expired before completion of the case. I can not see that she would be facing a repayment if ESA is subsequently refused. (ie no ltd capability for work exists.)There would be no error on the part of claimant = non-repayable overpayment. Obviously if Tribunal subsequently award ESA/Support she would continue to receive contrib. ESA at Support rate with relevant back-pay from the start.

What do you think about the lack of descriptors in decisions generally and the legality? Has anyone else encountered this? Have I missed anything that might affect my current client?
Thanks
Lid26