ESA Tribunal law

lordpsk

Hi,

I have got a tribunal coming up soon, the reason being is a legal argument about ESA law. If there is no law covering the reason why the refuse to pay can they use it against me, I say no they say yes and will let a tribunal decide.
So what will the tribunal do if here is no law or regulation to guide them.

pmlindyloo

lordpsk wrote: »

Hi,

I have got a tribunal coming up soon, the reason being is a legal argument about ESA law. If there is no law covering the reason why the refuse to pay can they use it against me, I say no they say yes and will let a tribunal decide.
So what will the tribunal do if here is no law or regulation to guide them.

Really need more details before anyone can help

Can you explain what the 'argument' is about?

lordpsk

I was on ESA, did the medical and certified as unfit for work, I was then in hospital for 17 weeks and they stopped my ESA whilst I was in hospital (which also going to a tribunalon a different date), when I cam out I was told I have to reapply which I did to save time but I would then need another medical doing which I agreed to, but I said why can they not reuse my old medical, apparently there is no law, rule or regulation which stops them using the old medical only a rule which says they can request a medical to be done at any time. They decided because there is no rule to guide them then they will let a judge at the tribunal decide.

pmlindyloo

So what money are you receiving at the moment?

Which group were you originally placed in?

Do they want you to go through the reassessment phase again?

Hang on in there.

I'm not an expert on ESA but there are some members who are, so wait for their response.

At least my reply will 'bump this up'.

mazza111

Not sure on legality of it, but might be worthwhile speaking to the welfare rights officer at your local social work department. They will know the ins and outs of it better

rogerblack

Did you refuse to attend the new medical?

skintandscared_2

Surely if you have spent 17 weeks in hospital, your old medical may well not be completely accurate! Obviously it depends on the condition(s) involved, but I would be very surprised if they DIDN'T ask for a new medical after 17 weeks of hospital treatment. A lot could have changed (for better or worse!)

lordpsk

The question is is there a rule or regulation that prevents them using the old medical

skintandscared_2

On a quick search of the regulations using "medical" as a search item I can't see anything about using old medicals mentioned at all. But surely it is academic because even if there was, there still remains the rule that they can ask you to attend a medical at any time.

Could they not argue that 17 weeks in hospital could improve a condition enough to affect the outcome (not saying that is so in your case as I don't know what you were in there for!)

Muttleythefrog

To be honest I can't make head nor tail of the predicament due to lacking info. I don't understand why they stopped your ESA.. presumably you didn't fail the WCA as you desire to have the old medical report used again. And while in hospital surely that meant you automatically qualified for ESA. Is it the case that due to hospital treatment they want to redetermine your entitlement on the grounds of change of medical circumstances... and so have ordered a new WCA. It sounds like you're appealing a decision by the DWP to not re-use old medical report rather than any WCA decision... is this right? If so.. then as above I don't understand what the purpose of the legal challenge is... since it is accepted they can order a medical at any time and that's what they desire to do. I must have some misunderstanding here... are you thinking that the DWP want to use the old medical report but think they can't.. you want them to and so are going to get a legal ruling that they can? The only roughly relevant information in the WCA handbook is probably the following (http://www.dwp.gov.uk/docs/wca-handbook.pdf):

"A claimant is to be treated as having limited capability for work on any day
on which he is undergoing medical or other treatment as an in-patient in a
hospital or similar institution or which is a day of recovery from that
treatment to include where the claimant is attending residential rehabilitation
for the treatment of drug or alcohol addiction".

If a claimant is due to go into hospital (i.e. pending hospital admission)
the Decision Maker (DM) can defer a decision and treat the claimant as having
Limited Capability for Work (LCW) from the date of admission.

Cpt.Scarlet

If your original claim was closed, then you would have lost your Limited Capability for Work status. I assume you have made a new claim, which means a new medical. A new decision has to be made and that has to be based on your current condition, not as it was sometime ago.

However, I can see nothing that would result in your claim being closed, simply because you were in hospital, are you sure this was the reason given, there should have been a decision letter with their reasons on it?