My son has Aspergers and failed the ESA medical assessment - is it too late to appeal?

timpavlou

My son has Aspergers and failed the ESA medical assessment. we didn't appeal at the time as straight after this he got a 4 month work placement and got paid. is it too late to appeal. 

Ripples

@timpavlou A mandatory reconsideration has to be placed within 28 days before it can go to an appeal. Although sometimes you can get some leeway on the 28 day rule due to extenuating circumstances if you let them know  I think  months later would  be stretching it.  Was this his first claim for ESA?  You can make another application  for ESA but if he was found fit for work only on the basis that his condition has altered or he has other conditions since. Should a new application be accepted he will have to go through the process again to an asssessment

BenefitsTrainingCo

timpavlou,

You've got quite a complicated situation here. One thing to think about when challenging this decision is whether your son would have got ESA during the work placement - if not, then then any arrears (backdating of benefit) you get would only be for the period from when his ESA stopped until he started work. However, it may be worth challenging it for other reasons, including the fact that as Ripples says, it is otherwise going to limit what he can get if he claims again.

He could have got ESA whilst working if he was working less than 16 hours a week and earning no more than £125.50 a week (or if he was in what is called supported work, when there is no hours limit but the earnings limit still applies). So, if you successfully challenged the decision, the only way he could stay on the same ESA claim as before would be if his work met these conditions.

If his work didn't meet these conditions, it's going to be difficult to claim again and get ESA before the assessment is carried out. That would only be possible if he has got worse (so that the DWP think he'd now be likely to pass the assessment) OR he has a new condition. However, that doesn't mean he won't be able to get ESA after the assessment, if he's successful a second time around - so there is no harm in claiming, as long as you understand that he won't get any money until after the assessment, and then only if he passes it (whatever decision you get from the second assessment, you'll have another opportunity to challenge it, of course). 

The best scenario would be to get the original decision changed, and it's always worth a try. But realistically, you're unlikely to get a positive result on this any time soon, so I would not delay reclaiming in the meantime. If you ask for a late mandatory reconsideration (MR) you can explain why you are late.  The MR is the stage where the DWP look at the decision again themselves. If that isn't successful, then you can appeal.

If you get that original decision changed, and in the meantime your son has reclaimed ESA, then you could ask for the decision not to pay him whilst waiting for his second assessment to be looked at again, and could get payments for that gap.

So to recap, the way to maximise your chances is to claim again (backdated to when he stopped working if that was within the last 3 months), AND ask for a mandatory reconsideration of the original decision as well. But your son will have to manage without any ESA paid on the second claim until after he has his assessment or until you get a successful MR/appeal result on the original claim, whichever is sooner. 

For the new claim and the MR, it's worth looking at the ESA self-test to see what points he should have got.

Best of luck,

Will