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ESA Appeal or reapply?
- BANDBOLTON
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11 years 7 months ago - 11 years 7 months ago #112939 by BANDBOLTON
ESA Appeal or reapply? was created by BANDBOLTON
Hi,
I work for a mental health charity and much of my job is taken up supporting people with ESA, DLA and PIP applications, assessments and appeals.
Please bear with me, I'll try and make this as concise as I can.
I have a client that came to me in the very early stages of his ESA appeal. He was awarded 9 points for his epilepsy but his father feels that he should be awarded points for his mental health - he has what appears to be anxiety and depression. However, 1) He has no diagnosis yet, 2) None of this was mentioned in the original ESA50 and 3) His insight into this seems minimal - he acknowledges the stress/anxiety but never mentioned depression which his father brought up. I do have a hunch his father has a valid claim especially after hearing his descriptions of his son's behaviour.
AFAIK he cannot appeal on grounds of his potential mental health issues. However, is there a case to be made under Section 29? I can also point to the fact that his original ESA50 is poorly completed - tick box job - and does not give a wholly just picture of his condition at the time. Would this allow him to lever his mental health issues into the picture?
I have advised him to make a double appointment at GP and present his mental health issues there - no matter what he decides to do re: ESA.
It is also more than 6 months since original application - would he be able to re-apply for ESA as well as carry on with the appeal? How do things work in this respect?
Any help/advice would be gratefully received!
Thanks,
Charlie
I work for a mental health charity and much of my job is taken up supporting people with ESA, DLA and PIP applications, assessments and appeals.
Please bear with me, I'll try and make this as concise as I can.
I have a client that came to me in the very early stages of his ESA appeal. He was awarded 9 points for his epilepsy but his father feels that he should be awarded points for his mental health - he has what appears to be anxiety and depression. However, 1) He has no diagnosis yet, 2) None of this was mentioned in the original ESA50 and 3) His insight into this seems minimal - he acknowledges the stress/anxiety but never mentioned depression which his father brought up. I do have a hunch his father has a valid claim especially after hearing his descriptions of his son's behaviour.
AFAIK he cannot appeal on grounds of his potential mental health issues. However, is there a case to be made under Section 29? I can also point to the fact that his original ESA50 is poorly completed - tick box job - and does not give a wholly just picture of his condition at the time. Would this allow him to lever his mental health issues into the picture?
I have advised him to make a double appointment at GP and present his mental health issues there - no matter what he decides to do re: ESA.
It is also more than 6 months since original application - would he be able to re-apply for ESA as well as carry on with the appeal? How do things work in this respect?
Any help/advice would be gratefully received!
Thanks,
Charlie
Last edit: 11 years 7 months ago by Gordon.
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- Gordon
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11 years 7 months ago #112943 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic ESA Appeal or reapply?
Charlie
I do not think that the mental health issues are 100% excluded from an appeal, but ideally you would need to provide evidence that your client was suffering from them at the time of their assessment, if you cannot do this then it would be very much down to the panel on the day whether they accepted it was true or not. The fact that they are not entirely aware of their conditions would be both a hindrance and help to this.
Regulation 29 is certainly a possibility, however, the burden of proof lies wholely with the claimant to show that they would be in danger or that they would pose a danger to others if they worked. One specific requirement is that the claimant must be suffering from a "specific disease or bodily or mental disablement", if you have no current diagnosis, you are likely to fail the test. Also, if the Decision was after 28 January then you will also need to show that reasonable adjustments made by an employer or prescribed medicine or treatments would not reduce the danger to the claimant or others if they were to work.
If six months have elapsed since the original Decision then they can certainly make a new claim for ESA, this can run in parallel to any appeal, but will limit the result of that appeal.
Unfortunately the forum has just closed for the afternoon, but if you have any specific questions on the above, please reply to this post this evening or in our next afternoon session.
Gordon
I do not think that the mental health issues are 100% excluded from an appeal, but ideally you would need to provide evidence that your client was suffering from them at the time of their assessment, if you cannot do this then it would be very much down to the panel on the day whether they accepted it was true or not. The fact that they are not entirely aware of their conditions would be both a hindrance and help to this.
Regulation 29 is certainly a possibility, however, the burden of proof lies wholely with the claimant to show that they would be in danger or that they would pose a danger to others if they worked. One specific requirement is that the claimant must be suffering from a "specific disease or bodily or mental disablement", if you have no current diagnosis, you are likely to fail the test. Also, if the Decision was after 28 January then you will also need to show that reasonable adjustments made by an employer or prescribed medicine or treatments would not reduce the danger to the claimant or others if they were to work.
If six months have elapsed since the original Decision then they can certainly make a new claim for ESA, this can run in parallel to any appeal, but will limit the result of that appeal.
Unfortunately the forum has just closed for the afternoon, but if you have any specific questions on the above, please reply to this post this evening or in our next afternoon session.
Gordon
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- BANDBOLTON
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11 years 7 months ago - 11 years 7 months ago #113037 by BANDBOLTON
Replied by BANDBOLTON on topic ESA Appeal or reapply?
Thanks for the reply Gordon,
I think the main evidence for how my client was at the time of the original WCA in respect to depression would come from his father. Evidence for anxiety seems more plentiful in that it is linked to his fits (or rather vice versa). Pending a visit to his GP his father's testimony would be pretty much the only evidence.
Please could you explain what impact making a new application for ESA would have on the result of the appeal.
Thanks,
Charlie
I think the main evidence for how my client was at the time of the original WCA in respect to depression would come from his father. Evidence for anxiety seems more plentiful in that it is linked to his fits (or rather vice versa). Pending a visit to his GP his father's testimony would be pretty much the only evidence.
Please could you explain what impact making a new application for ESA would have on the result of the appeal.
Thanks,
Charlie
Last edit: 11 years 7 months ago by Gordon.
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11 years 7 months ago #113050 by Gordon
The Tribunal will re-make the original Decision whereas a new claim will result in a new Decision being made that will supersede any previous Decision.
So, as an example, if the Tribunal puts your claimant in the WRAG and the new claim results in a Fit for Work Decision again, then whilst they will receive the WRAG rate from the date of the original Decision until the new one, after that their ESA will stop again, although this will be an appealable Decision.
You should be aware that any new Decision will likely be subject to the Mandatory Reconsideration process if an appeal is required.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic ESA Appeal or reapply?
BANDBOLTON wrote: Thanks for the reply Gordon,
I think the main evidence for how my client was at the time of the original WCA in respect to depression would come from his father. Evidence for anxiety seems more plentiful in that it is linked to his fits (or rather vice versa). Pending a visit to his GP his father's testimony would be pretty much the only evidence.
Please could you explain what impact making a new application for ESA would have on the result of the appeal.
Thanks,
Charlie
The Tribunal will re-make the original Decision whereas a new claim will result in a new Decision being made that will supersede any previous Decision.
So, as an example, if the Tribunal puts your claimant in the WRAG and the new claim results in a Fit for Work Decision again, then whilst they will receive the WRAG rate from the date of the original Decision until the new one, after that their ESA will stop again, although this will be an appealable Decision.
You should be aware that any new Decision will likely be subject to the Mandatory Reconsideration process if an appeal is required.
Gordon
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