Following Benefits and Work’s article about a claimant negotiating with Maximus to use an up to date ESA50 form for a Work Capability Assessment (rather than using an ESA50 Form completed 2 years earlier), there has been much debate about how this situation arose. A number of scenarios have been considered, but in the absence of evidence, it has been difficult to establish who was responsible for this state of affairs and whether it was really a legacy from the Atos period.
A recent interesting case has been brought to the attention of DPAC, which demonstrates that it is absolutely essential for claimants to refuse to undergo a WCA without first completing an ESA50, and to refuse to undergo a WCA with an ESA50 submitted for an earlier assessment.
One claimant, who we will call John, was recently invited for a Work Capability Assessment and DWP decided he was not entitled to ESA based on the WCA and a 2 year old ESA50 form. Following this, John requested a Mandatory Reconsideration, which failed as DWP upheld their initial decision, leaving him with no other option than to lodge an Appeal.
If you think this is bad, it is going to get much worse. John had already undergone a Work Capability Assessment 2 years earlier, using the very same ESA50 for the first time. He was refused ESA, and as it was prior to the introduction of Mandatory Reconsiderations, he was able to directly appeal the decision. The tribunal overturned DWP’s decision and decided that John was entitled to ESA.
In other words, an ESA50 form which was instrumental in a decision, overturned by a tribunal, to deny John of his entitlement to ESA, has been used again, and has led again to John being denied ESA. How can this not be unlawful?
Even if we assume that neither Atos nor Maximus would have been aware of the WCA outcome in John’s case (or in any other claimant’s case), or aware of whether claimants had lodged a tribunal appeal resulting in a reversed ESA outcome, this scenario still had to be a distinct possibility for them to consider, when deciding to reuse a 2 year old ESA50 form.
Furthermore, it is very clearly stated on the ESA50 form that the claimant should be prepared to undergo the Work Capability Assessment within 3 months of the ESA50 being returned. Although no statutory time limit has been set as to the validity of the medical information gathered in the ESA50, by their very nature illnesses change over time and so does their impact on a person’s functional ability. This is the very argument that the DWP uses to justify making people attend multiple WCAs. It is therefore essential that the most up to date evidence is available to those making the assessment and making the decisions.
In practice, no claimant should agree to undergo a WCA without first submitting an ESA50 form with the most recent medical information. Go back to Maximus and ask them for a new ESA50 form. Ultimately, the legal power to require evidence rests with the DWP and not Maximus.
DPAC would be interested in what Sue Marsh has to say about this apparent new twist on denying disabled people support
I went to a assessment back in July 2016 and the assessor basically lied and put the opposite to what happened, I suffer with spodylosys of the spine and my back went whilst in the assessment but she did not even make note of it, I could hardly leave the assessment due to the pain I was in and now have to go to a tribunal.
She did not even make not that my condition is of a nature that it will never get better and will degrade over time.
She even put that I can get a wheelchair for free in the report even though she knew that I have one and use it most days when I can actually get out of bed (with assistance).
Hi.I was migrated from IB to ESA in September 2013.I completed an ESA50 and was placed in SG for 3 Years.Am due for Reassessment soon but worried and suspect that I will be invited for a F2F without a new ESA50 even being sent to me.What are my options? Thanks.
Hi, apologies if I am asking advice in the wrong section of the website but my mother has recently had her employment support allowance stopped after attending an ATOS assessment in which the used an ESA50 form which had been completed in excess of 14 months prior, during which time her health had deteriorated. The DWP stated the the decision was made primarily on the information provided on the ESA50 form. We have appealed this, which was upheld and are now in the process of taking it to tribunal however I cannot seem to find any information on if there is a time frame in which the ESA50 from should be used.
Also any information or tips on what we should do to prepare for the tribunal would be greatly appreciated.
Kind regards
we’re currently following this up with Justin Tomlinson and Maximus but so far have had no response. Please ask your MP to get an answer from Justin Tomlinson for you.
Hello all i am hoping for some clarification here, i hae recieved a letter telling me to attend an asessmen on the 24th, but i have not recieved a ESA50 form? the last time i had one was 2013 and it was decided from that i did not need an asessment, but this time as i said they have not sent me the form first, what shall i do? anty help greatly appreciated i have severe anxiety and cannot face even the thought of going to this asessment.
She, Marsh will not be able to change much if at all anything. this is big business she is up against and i’m afraid profits mean more than people.
Ultimately made a terrible mistake working for them, but then ££ and not her ideals for changmaking come into the equation.
just want to share what happened to me at my tribunal in jan2014
turned up with a carer, my welfare rights officer said”I have a health warning for you, your lwr mobility award was awarded in error of law on the cooking test, so I thought if I went into the tribunal I would be putting at risk my remaining d.l.a.I sent him the original award which contradicted what he claimed he then denied saying it
he also. said he asked them if they wanted to see me about why I was not proceeding into the tribunal he said they did not wish to speak with me, which is so convieniemt for him as I would have asked them to confirm.the error in law
this is exactly what happened to me. At my ATOS reassessment for ESA the ESA50 I had completed prior to an assessment two years earlier was used; I had not received a new form. Incredibly the DWP used the old form to assess me for DLA as well. needless to say I was refused Support Group ESA and Mobility for DLA.
I took both to appeal and won both Tribunals. The DLA tribunal criticised the DWP for their use of my old ESA50 leaving the DWP rep who attended with a bright red face!
I went through hell during the year it took 4 both my cases to come 2 tribunal. I lost 2 stone in weight and became very depressed and anxious.
thank you so much for this article I will ensure that I get a new form to fill in when I am re assessed in future.
Having a court order in place in your favour, even “The tribunal overturned DWP’s decision and decided that John was entitled to ESA” they are acting in bad faith and in contempt of the legally binding court order, which is a criminal offence, making false statements under the Fraud Act 2006.
I really don’t understand how they can deny someone ESA in subsequent assessments when the evidence used is the previous evidence that proved they were entitled!
If someone’s condition has not changed then all that would be needed is confirmation from their G.P. This would save the government a lot of time and money as it’s obvious that a tribunal could hardly go against their own previous decision.
Yes I’d like to know what Sue Marsh has to say about this. She’s gone very quiet!
Yet again is an underhanded tactic too prevent people claiming what they are entitled too we try & claim & are labelled as Scroungers