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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Employment and Support Allowance

Elin
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Welfare Team, Grwp Cynefin, North Wales

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Total Posts: 10

Joined: 11 June 2020

Hi - i just wanted to see if anyone has had experience of this and what should be done?

Our tenant has been on ESA since 2018 and he was placed in the wrag group following his 1st ESA assessment, and he was asked to attend a new assessment on the 31.05.19. He attended the assessment and did not hear anything further until he called DWP on the 07.11.2019 asking if there was a decision re the assessment.

He was told that the medical assessment report from the assessment never came to the DWP from Capita so nothing had been done on his claim. He explained that he was having further surgery soon, so he was placed in the support group as from the 07.11.2019 - the date he contacted DWP.

He queried why the extra element was not taken back to the date the assessment was conducted, and was told that they could only start it from when he contacted the DWP.

I am going to be writing a late MR re this decision however just wanted to see if anybody had experienced a situation like this before.

Thank you

VRW
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Livin Housing

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Total Posts: 61

Joined: 25 November 2019

i would assume that the reason he was put in the support group was due to the surgery and not from the assessment (especially since they hadnt received it from capita and i cant see the DWP being generous into thinking we will award him SG)

so it wouldnt be backdated to the date of assessment as the surgery was due to happen and not happened at the time of the assessment

unless im barking up the wrong tree im not sure there is a challenge to this?

if they havent made a decision from the assessment or kept him in the WRAG from assessment to 7/11 then that would be the challengable if he meets the SG criteria - if they havent made a decision it would be chasing that decision up

unless anyone else thinks differently??

Elliot Kent
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Shelter

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Total Posts: 3117

Joined: 14 July 2014

We’re dealing with effective dates of supersessions.

When DWP supersede one decision with another, the effective date will depend on the ground on which the decision was made. The two relevant grounds are 1) receipt of new medical evidence and 2) change of circumstances.

DWP will often use the receipt of new medical evidence - such as the Capita report - as a ground for supersession. The effective date is always the date of decision. So this does us no good.

If the change of circumstances ground is used, the effective date will usually be either the date the change occurred or, if the claimant has delayed reporting the change without good reason, the date it was reported.

If you want to argue that the supersession should take effect from an earlier date, you would need to show that there was a change of circumstances justifying LCWRA at some earlier stage which was reported to DWP. It may help you to get a copy of the ESA50 and ESA85 to see if there is any evidence that a change was reported.

I don’t think there is any reason why this couldn’t be done in the context of a reconsideration request or appeal of the later decision.