ESA mandatory reconsideration decision

Yes, but surely any human lived experience will technically be in the past unless it is in the immediate, lived present! When someone goes to an WCA, they do not surely only talk about what is happening in the immediate lived present of that interview process, but also their lived experience, and especially recent lived experience, up till that point.

If someone has physically collapsed due to their disability a few months before the WCA, I am sure you would agree with me, that might have a significant bearing on the nature of their condition and what dangers they might potentially be subject to in the future. To rule out this possibility altogether, I'm sure you would agree again, would likely be completely unreasonable.

Furthermore, if this were an absolute hard and fast rule then surely *any evidence* presented at the WCA would surely count for nothing because it will, as a simple matter of fact, be in the past, and even the interview itself, be in the past , when the DWP decision maker comes to review the decision on the evidence which has been presented earlier.

Anyway, that aside, on the plus side, I came across some interesting information last night regarding my earlier query in this thread (which I hope might benefit anyone with a similar question in the future, and therefore I hope it will be useful to this forum as a whole), regarding whether it was legitimate for the DWP to keep on "moving the goal posts" in terms of Work Related Activity, in order to make the concept infinitely elastic and to exclude everyone who was not literally totally immobile - or on the verge of death.

So on this page it cites a case as follows:

www.cpag.org.uk/content/esa-and-substant...sk#footnote4_ewzje0m


In KB v SSWP (ESA) [2015] UKUT 179, Judge Ward considers the assertion that the DWP would ‘take on board’ the fact that the claimant had mental health problems and would tailor work-related activity accordingly, thus averting any risk of substantial harm. This approach is rejected as wholly inadequate, in light of the guidance set out in IM v SSWP (ESA) [2014] UKUT 412 (AAC). [...] This is clearly important in terms of enabling the claimant to access the support component (and potentially the enhanced disability premium) and to remain on contributory ESA beyond one year.

Similarly with arguments presented about using the Equality Act to make 'reasonable adjustments' in similar kind of way:

JS v SSWP (ESA) [2014] UKUT 428 (AAC) considers whether the assessment of risk under regulation 29 requires or involves the consideration of whether employers owe a duty under the Equality Act 2010 to make reasonable adjustments in respect of individual claimants. In essence, the issue was whether the potential substantial risk could be negated by employer’s obligations under the Equality Act to ensure that people with disabilities are not discriminated against in the workplace. Judge Wright comments that this contention ‘seems problematic because if the Equality Act 2010 is such a panacea then it leaves unclear in what situations regulation 29(2)(b) continues to have application’ (paragraph 4) and concludes that such an approach is not permissible. In other words, the decision maker cannot rely on the Equality Act to sweep away the potential substantial risk to a claimant of being found not to have LCW.

As I said, hope this might prove useful to people with a similar question in terms of the case law, does seem to be relevant by the looks of things.

I think you are missing the point of what I was saying.

Thanks, Gordon, no, I think it is you who is perhaps missing something that I wrote, very specifically, in post #202776:

" plus I made clear at the WCA that such reactions were a good indication of how I was at that time". i.e, it made clear that this related to how I was currently at the time of the assessment, and indeed I included this as a reply to how I managed social interaction in general terms, these experiences only having been a few months ago, although absolutely reflecting what I held to be my current situation at the time of the WCA. (Just as someone might have Tourette's Syndrome, and they might cite the experience of social interactions which they had had a few weeks or months ago as good instances or examples of how they were at the time of the exam, even though they had purposefully avoided such distressing situations since that point.)

I do appreciate your advice, Gordon, but I would be very grateful if before responding you would take the care to read what I have actually written, because simply to suggest various ideas won't work, when they aren't based on the precise detail of what I've actually said can feel very disempowering, and indeed is starting to remind me a tiny bit of how I'm dealt with currently by bureaucrats at the DWP, who also happen to be showing a complete disregard for my current situation.

Thanks again.

That's all right, Gordon. I'm sorry, please accept my apologies, as I know you provide a lot of useful information here free of charge, and it is easy to miss the detail of what someone is saying sometimes and thus get the wrong gist of the precise circumstances they are referring to.

Looks like the tribunal is probably the best option as I have just been reading through the DWP letter and it contains such a high degree of irrationality it is not going to be worth trying to reason with them.

How did the DWP say you coped at the WCA? Did they say you were trembling, anxious etc?
There is a similar thread on Rightsnet, but with no useful replies yet -

www.rightsnet.org.uk/forums/viewthread/12158/