Successful IB/IS Migration

Crazydiamond wrote:

Lyndsay Mann wrote:

As is so often said here as well as in the guide's it's really important to send in as much supporting evidence as you can....

Not necessarily the case, because as the burden of proof lies with the Secretary of State, it is up to the DWP to obtain all the evidence that it is required to come to a decision on entitlement.

Claimants should never be placed at a disadvantage because they may not be able to obtain the requisite evidence on grounds of cost, and furthermore as has been clearly demonstrated in this forum, many GPs will refuse to provide letters of support as it is not a part of their contract to do so. However, they are duty bound to provide evidence if Atos/the DWP specifically require such evidence, as it is a binding contractual obligation.

I truly hope the amount of supporting evidence doesn't sway things either way. Many people don't have letters from consultants etc...as they are not under one, they are just left to cope with their conditions.

The DWP and/or Atos are obliged to obtain the medical evidence, otherwise they will have failed to discharge the requisite burden of proof in order to terminate the ESA award. This would be particularly the case if the claimant asked for the evidence to be obtained, and the decision-making authority failed to comply with the request.

I can only reiterate that a claimant should not be placed at a disadvantage in obtaining the medical evidence for the reasons given in my last post, when the S of S is initiating a supersession of an IB/IS/ESA award of his own volition. When ESA or IB/IS on the grounds of disability was initially claimed, the burden of proof lay with the claimant to prove entitlement, but once the award was made the roles are reversed.

In these circumstances, because a GP or other healthcare professional conforms with his/her contract and chooses not to release any supporting medical evidence to a claimant for whatever reason, the DWP and/or Atos have a duty as defined in statute and case law that places an obligation on the DWP, and through them Atos Healthcare, a duty of care to patients subject to the actions defined by the Welfare Reform Act 2007. The tort of negligence is a wrongful act against an individual, and liability can be based on a breach of statutory duty. Therefore, where appropriate, a claimant should stress to the DWP that in order for a valid assessment to be made a "qualified" healthcare professional should contact their GP and/or consultants.

Crazydiamond wrote:

The DWP and/or Atos are obliged to obtain the medical evidence, otherwise they will have failed to discharge the requisite burden of proof in order to terminate the ESA award. This would be particularly the case if the claimant asked for the evidence to be obtained, and the decision-making authority failed to comply with the request.

I can only reiterate that a claimant should not be placed at a disadvantage in obtaining the medical evidence for the reasons given in my last post, when the S of S is initiating a supersession of an IB/IS/ESA award of his own volition. When ESA or IB/IS on the grounds of disability was initially claimed, the burden of proof lay with the claimant to prove entitlement, but once the award was made the roles are reversed.

In these circumstances, because a GP or other healthcare professional conforms with his/her contract and chooses not to release any supporting medical evidence to a claimant for whatever reason, the DWP and/or Atos have a duty as defined in statute and case law that places an obligation on the DWP, and through them Atos Healthcare, a duty of care to patients subject to the actions defined by the Welfare Reform Act 2007. The tort of negligence is a wrongful act against an individual, and liability can be based on a breach of statutory duty. Therefore, where appropriate, a claimant should stress to the DWP that in order for a valid assessment to be made a "qualified" healthcare professional should contact their GP and/or consultants.

Do the DWP not have access to "regional consultants" for when there is a problem with GP or hospital Drs I am sure they use to have ?

hi, i have recieved a letter about migrating from ib to esa. i too have fibromyalgia and chronic fatigue, have had it 15 years. i am very worried about filling in medical questionairre. as i dont look ill but have several symptoms of different things, as you well know with fibromyalgia. my doctor knows about fibromyalgia but doesnt know what i can and cannot do and is not very helpful at all. i do see a natural alternative doctor and he is very understanding as he has it himself but i do not know if he would count if i get letters from him for the evidence. just thought i would email you as you have gone through the same thing.
katherine

Crazydiamond wrote:

The DWP and/or Atos are obliged to obtain the medical evidence, otherwise they will have failed to discharge the requisite burden of proof in order to terminate the ESA award. This would be particularly the case if the claimant asked for the evidence to be obtained, and the decision-making authority failed to comply with the request.

I can only reiterate that a claimant should not be placed at a disadvantage in obtaining the medical evidence for the reasons given in my last post, when the S of S is initiating a supersession of an IB/IS/ESA award of his own volition. When ESA or IB/IS on the grounds of disability was initially claimed, the burden of proof lay with the claimant to prove entitlement, but once the award was made the roles are reversed.

I understand from elsewhere that IB and ESA are two different benefits in legal terms.

If that is the case, then presumably the DWP can claim that in the case of "migrating" claimants that they (claimants) have the burden of proof, for this first claim of a new benefit.

Hi carruthers

IB to ESA transferees are not making new claims. The DWP are initiating the reassessment and will be superseding benefit decisions, so the burden of proof will lie with them.

Regards

Derek