The quality of the medical assessments carried out on behalf of the Department of Work and Pensions (DWP) to determine entitlement to Employment & Support Allowance (ESA) still leaves much to be desired, based on the cases that I see.
To be eligible for ESA the applicant should pass 15 points threshold. Those that have been denied usually seek advice to appeal their case yet still fail. However, it is very seldom as far as my experience is concerned not to find the needed 15 points whenever I assist my clients in going through the test.
Although the decision still lies with the tribunal there are a few aspects which can be considered in improving the chances of approval. First, I deem that it is not advantageous to squeeze out every possible point instead I advise my client to be honest and be realistic when taking the test. It is also of great essence that I believe in the authenticity of my client. If on my part I already find even a hint of doubt, what more with the tribunal? It will also help if relevant medical evidence can be presented although securing them will need a combination of luck and skill. Further, it is worth going through the ESA50 enquiry form and the “health care professional” (HCP) report with the client. Analyze what the client wrote in his application with the HCP and what the remarks of the latter were. Finding factual inaccuracies and correcting it can be helpful in persuading the tribunal that they should reconsider the application.
Meanwhile, I find that majority of the clients who have scored nil points can pass the separate test to be placed in the “support group”. If it gets approved, the client will be spared of “work-focused interviews” and other requirements to carry out “work-related activity” thus avoiding financial sanction. Actually being in the support group marks a financial advantage as opposed to “work related activity group” as the latter will only have 12 months entitlement effective April 2012. After which, they can avail means-tested benefits such as income related ESA, housing benefit or council tax benefit which they might not be able to qualify either if their spouse or they have other sources of income such as pension or other earnings.
My concern in most of the appeals is to move the case into a support group and it is quite gratifying when the decision maker will accept the medical evidence submitted by my client without the need for tribunal hearing.
At any rate, an element of luck can still be considered if the case is recommended to be place in front of the tribunal where it will be heard by 2 panels comprising a judge and a doctor. As the tribunal is also human, both may have a different approach to the evidence presented to them. Some members may be more even-handed than others and the chance of a favourable outcome increases. On the other hand, some may struggle with “giving benefit of the doubt” and this can consequently affect the outcome of the case.
Since I always attend hearings, I’ve noticed that some representatives prefer to just make a submission before the tribunal. This may help as it is possible to irritate the tribunal easily if the representative speaks too much. But based on my experience, I prefer not to send submission. Judges usually ask question not presented to them in writing and answers to which should be as specific and detailed to convince them totally. I don’t believe in “trying it on” and recommend claims. Instead, I pursue appeals which I believe have merit.