See below for a template covering letter citing case law that ‘obliges Decision Makers to take into account the relevance of a claimant’s existing DLA award when considering a Work Capability Assessment’
Date
ATOS Healthcare
SW95 9EB
Dear Sir/Madam
Re: M
We write on behalf of the above-named person. His authorisation to correspond is attached.
We helped M.. complete the enclosed ESA50 form.
M….short description
He gets highest rate care of Disability Living Allowance (DLA) because of his many care needs. He is also, for obvious reasons, in receipt of the higher rate mobility component of DLA. While we are aware that DLA has a different focus to ESA, case law (JW v SSWP (ESA) [2012] UKUT 256 (AAC)CE/2894/2011)obliges Decision Makers to take into account the relevance of a claimant’s existing DLA award when considering a Work Capability Assessment—there may be sufficient “common ground” for one to provide material evidence in respect of the other.
We are concerned that there would be substantial risk to M….s’ health if he were found not to have Limited Capability for Work (Regulation 29 ESA Regs.) or if he were found not to have Limited Capability for Work-Related Activity (Regulation 35 ESA Regs.). And given the level of care he requires, we cannot see what reasonable adjustments any prospective employer or JCPlus Claimant Adviser could put in place to lessen that risk.
In light of the above, we would ask that M….. be placed in the Support Group of ESA without having to undergo a Work Capability Assessment.
Yours faithfully
The use of these regs by doctors and welfare advisors has also been part of a long campaign by our sister group Black Triangle Campaign.
Attached is a piece of case law saying that a physiotherapist opinions re a claimant with mental health problems has “no probative value whatsoever”. The reference is at paragraph 22.
This case law is very useful to include in ESA applications and WCA appeals so please pass to any Welfare Benefits advocacy/advisors or use yourself.
This information has been proven to contribute to a high success rate re ESA/WCA
Case law:SKMBT_C45114031409590
[suffusion-the-author]
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This is very useful. Hopefully it can be used the other way round too, to support a supersession of DLA due to being in ESA Support. Worth a try anyway, thanks.
This is a very important find and could help an awful lot of people. I reposted this on dwpexamination.org and http://fightback.boards.net
Thank you.
Thanks for this vital info xx