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TOPIC: DLA turned down becaue of ESA

DLA turned down becaue of ESA 6 years 2 months ago #63774

  • ddraig1
HI, I have three questions that I need help with please,

My ex-husbands application for DLA was turned down today. ( I am still his primary carer)
The reasons given were because the ESA medical assessment that was made in March of this year state that he has little to no problems.(scored only 9 points)so they used that assesment as the evidence to determeine whther he needs help at home.

The March ESA decision is under appeal, as no medical evidence was used in the decision and there are a lot of factual inaccuracies and omissions.

The same ATOS health care professional recently re-assesed him for Industrial injuries and ruled that he has a number of problems with his upper body i.e. reaching, lifting, carrying etc among others, which is entirely contradictory to the March ESA decision.

My three questions are;

1 - Can he ask the DLA decision to be looked at again and ask them to not use the ESA assesment as evidence on the basis that it is being contested?

2 - Should he use the obvious contradictions between the ESA and IIB assesments during his ESA tribunal, as evidence, as the majority of the argument is that the ESA assesement is utterly inaccurate?

3 - Would this contradictory decision of the same health care professional be grounds to pursue a complaint through ATOS and the GMC and if so is it worth it?

Thanks.

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Re:DLA turned down becaue of ESA 6 years 2 months ago #63782

  • Gordon
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ddraig1 wrote:

1 - Can he ask the DLA decision to be looked at again and ask them to not use the ESA assesment as evidence on the basis that it is being contested?

You can ask for a Reconsideration, or you can appeal, which will still result in a Reconsideration. The DWP are entitled to use whatever evidence they feel is applicable, so you can't get the ESA medical taken out.

2 - Should he use the obvious contradictions between the ESA and IIB assesments during his ESA tribunal, as evidence, as the majority of the argument is that the ESA assesement is utterly inaccurate?

In the same way as above, you are entitled to use what evidence you believe is appicable. However, the older a report is, the less weight it is likely to be given by the Tribunal Panel.

3 - Would this contradictory decision of the same health care professional be grounds to pursue a complaint through ATOS and the GMC and if so is it worth it?

If you believe that the doctor has not fulfilled his obligations you are entitled to make a complaint, however, one argument I would expect you to encounter is whether the two reports were written with the same intention.

On a more general note, whilst it is important to hi-light inaccuracies in the medical report, doing so will not win an appeal. You need to show that your husband meets the requirements of DLA, so I would urge you to balance your efforts accordingly.

Gordon

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Nothing on this board constitutes legal advice - always consult a professional about specific problems

Re:DLA turned down becaue of ESA 6 years 2 months ago #63790

  • ddraig1
Hi Gordon, thanks for the reply.

I appreciate all you say, however...

"On a more general note, whilst it is important to hi-light inaccuracies in the medical report, doing so will not win an appeal. You need to show that your husband meets the requirements of DLA, so I would urge you to balance your efforts accordingly"

How do you do that if, you have explained in your orginal application why he needs it, but they are using wrong information to assess the claim WITHOUT looking at the factual medical information that is available.

For instance my husband, for various reasons but most significantley because his right arm does not work, which is medically documented cannot prepare a cooked meal. This was explained in great detail in the DLA application. They have refused this because of the decision in the ESA medical where they state he can use his right arm, again this is medically incorect.

How can he show that he meets the requirement, if they choose not to look at the medical evidence and use so called evidence that is plain wrong?

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Re:DLA turned down becaue of ESA 6 years 2 months ago #63792

  • Gordon
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  • Posts: 31022
ddraig

It looks to me, based on your last post, that you already understand how to do this.

Most certainly, you must show that the ESA report is inaccurate and is not a true representation of your husbands condition, and as a consequence should be disregarded. This resets the playing field, so to speak.

Then you explain why your husband meets the DLA criteria with evidence from his GP and Consultants, if available, to support what you are saying.

All that said, whilst the Tribunal panel will read and consider all of the evidence, most decisions are the result of questioning on the day.

Gordon

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Nothing on this board constitutes legal advice - always consult a professional about specific problems
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