ESA Regulation 29

Can any of you legal eagles help, please?

I am the carer for a 54 yr old Afro-Caribbean single man, living alone, who is in recovery from prostate cancer, has just endured the death of both parents (one from prostate cancer) and suffers from severe long term depression for which he is receiving NHS treatment with a clinical psychologist. He is also under GP treatment for persistent chronic back-pain due to slipped discs and attending six monthly tests and consultations with his oncologist

He attended a WCA conducted by a registered physiotherapist, was awarded 0 points, disallowed entitlement and, after a reconsideration refused to change the decision, stripped of all benefits and tipped into destitution and a prolonged struggle with the DWP.

I am how helping him with an appeal and he is at last trying to survive on assessment rate ESA.

The effect on him has been devastating. Whereas he was just about managing before, now he is prone to uncontrolled bouts of weeping, even in public, to the dismay of passers by. Has on occasion had to be restrained from angry outbursts. Is threatening suicide (although I don’t think he will act on it) – I could go on!

I believe there are special circumstances set out in a Regulation 29 which might assist his appeal, which have to include the consequences to a person’s health and well-being of going through this process and being found fit for work. The DWP have recognised on page 1 of their ESA65 that he has a disability and ill health so “what work?” one might enquire.

He faces the Kafkaesque nightmare of being considered too ill to work but not ill enough for benefits.

The question is, what does Regulation 29 have to say about this? Nowhere in the ESA50 he submitted nor in the ESA65 he got as a result of an SAR I submitted for him is there any reference this.

Would this be any assistance to him in an appeal? He has got letters from his GP, oncologist and psychologist as the DWP did not bother with ESA113 even for the re-consideration although he supplied their details.

Will written submissions from friends and those who know him well be acceptable and taken into consideration to counter a superficial, partial and sometimes inaccurate assessment?

Getting steadily more enmeshed – any way out, please?

Hi,

It is a shame that no-one informed your client that he could claim reduced ESA while he was appealing, that might have saved him from some hardship and sitress!

We usually suggest that you do not 'put all your eggs in one basket' by relying on reg 29. If you think your client meets other descriptors then you should make this clear.

As you say, DWP have acknowledged that he has ill health and disabilities, but not that he meets the criteria for ESA. It is entirely possible to be judged to be too 'well' for ESA - but not well enough to meet the JSA requirements! Nor are DWP under any obligation to contact the claimant's health professionals for further information

If a claimant wishes to assert that reg 29 applies to them, it is completely down to the claimant to prove this. This includes showing why he (or someone else) would be at risk from him being found fit for work, what the risk is and also that it is 'substantial' (which does not have any legal definition). It is also up to the claimant to provide evidence of this. So, as you can see, it is not an easy option!

You will find more information in our ESA guide

ESA claims and appeals

If you have any further questions, please come back and ask them on this topic/thread as it helps us if everything is kept in one place. You will be able to find it easily in future if you mark it as a favourite, or bookmark it, now

Hi M,

With regards to "Substantial Risk". you would have to cite, and prove ESA REG 29 (2) (a) & (b) :

ESA REG 29 :

ESA Reg 29 for entry to The WRAG (LCW)

PLUS Post 28/01/13 Amendment of :

(3) Paragraph (2)(b) does not apply where the risk could be reduced by a significant amount by—

(a)reasonable adjustments being made in the claimant’s workplace;

or

(b)the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.”.

From :

www.legislation.gov.uk/uksi/2012/3096/regulation/3/made

You may also find the DM Guide helpful :

DM Guide LCW & LCWRA

&

DM Guide ESA Amendments from 28/01/13


bro58

Many thanks for your kind help and guidance.

It wasn’t quite like that Mrs H. When my friend got his GL24 it offered him the choice of a reconsideration and/or an appeal even telling him do not (their emphasis) use the appeal form if he wanted to do the former. After repeated assurances from his local JCP that he would be paid assessment rate if he chose reconsideration, he did so, only to be told by DWP Glasgow after a few weeks that he wouldn’t unless he made an appeal.

At that time he had to leave the country to deal with the death of his mother so his appeal was two weeks late. They accepted it as on time due to compassionate grounds but ten weeks had elapsed. Simultaneously his local council had suspended his Housing and Council Tax Benefits due to “change in circumstances” Did the DWP inform them of his ESA stoppage? Can they do that under data protection? The result was he was pitch-forked instantly into destitution.

Fortunately he had recorded all his phone calls so, cutting a long story short, after a protracted battle over misinformation and maladministration the DWP capitulated and eventually gave him over £700 assessment rate back-dated to the original decision.

When the DWP settled so did the council and he got his benefits restored plus rebates and all the money he had to borrow to meet rent arrears and keep the bailiffs out. It wouldn’t have happened without a fight and the effect it had on him was dreadful. Renewed threats of suicide etc., which is what led me to Regulation 29.

Thanks for your heads up on this, but is it true that this has been modified after some court decisions? I found this on the Child Poverty Action site www.cpag.org.uk/content/making-exception which seems to say they have to consider also in a finding of fitness to work, the consequences to the claimant of the finding, what sort of work should he find, what the likelihood is of getting it, and travelling to it. Does this carry any force?

We are not only relying on this, as you so helpfully suggest, but also on the nature of the assessment and specific descriptors, The assessment was inadequate to say the least. Two examples -the Disability Analyst was a recently registered overseas physiotherapist who, in his findings on prostate cancer didn’t know what brachtherapy or PSA meant. Also in the clients interview, where my friend stated how he constantly felt loneliness and isolation but that a few friends visited “occasionally”, this became “friends visit regularly,” later in the report and then, later still, “friends visit often.”

Decision makers also added their own medical opinions, diagnoses and prognoses which I am sure they are neither qualified nor mandated to do. And so on…

Also would a signed affidavit from close friends have any value in rebutting some of this? I guess we are going to have to find an adviser who knows the ins and outs.

Sorry if I’ve rambled a bit, but I came to this late. I am a 74 yr old who has up till now given due respect to the probity of our civic institutions. Not any more!

Gordon,

Many thanks for that reassurance. A quick supplemental.

Was there a recent decision in the Courts that, in the case of mental health issues, the DWP does have some responcibility in the obtaining of further medical evidence and that the full rersponsibilty should not fall solely on claimants? What exactly does the decision mean? Does it have any force while it is under appeal?

Preparing our appeal now and will let you know what happens.

Again, thank you.