Employment and Support Allowance (ESA)
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Face to face assessments

MarkChvMarkChv Member Posts: 11 Connected
Please note that my ESA Tribunal proved that you can refuse to go to a third party contractor for a medical report as the law doesn't actually say what the DWP thinks it says and you can refuse the DWP permission to pass on your details. If they then do so and you are sent an appointment you don't have to go as it's been illegally set up as the DWP has broken the Data Protection Act. [removed by moderator]

Replies

  • Adrian_ScopeAdrian_Scope Testing team Posts: 7,953

    Scope community team

    edited October 2019
    Hi @MarkChv. I’ve removed the image from your post as we don’t allow the sharing of personal information including full names.
    Senior Community Partner
    Scope

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  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    Hi,

    You can be found fit for work if you fail to attend a work capability assessment. https://cpag.org.uk/welfare-rights/resources/article/esa-–-limited-capability-claim

    Proud winner of the 2019 empowering others award. This award was given for supporting disabled people and their families for the benefit advice I have given to members here on the community.
  • wilkowilko Member Posts: 2,289 Disability Gamechanger
    Nice try but it won't work as Poppy has stated. You will be found fit for work. The same applies for pip you failed to allow assessment process after you applied for pip. 
  • MarkChvMarkChv Member Posts: 11 Connected
    Hi Adrian_Scope I'd just provided it so others could see that I'd won and only left the case reference on in case anyone needed it. My NINO was edited out.
  • MarkChvMarkChv Member Posts: 11 Connected
    To Poppy and wilko unfortunately with my attached photo of my Tribunal letter removed by Adrian you couldn't see that I have done this already and won.

    I agreed to give my details to the DWP, and have a medical report done by a Civil Service doctor (not a contractor) or my GP. I went through the law and despite what the DWP believes there isn't anything in there that says claimants are obligated to go to third party contractors or have personal info passed on. Therefore I have proved that you can withhold that permission and still win.
  • pollyanna1052pollyanna1052 Member Posts: 1,998 Disability Gamechanger
    Wow! This to say the least, is gobsmacking! But the majority of people never knew about the law on attending assessments ordered by DWP with ATOS or CAPITA.

    We are all frightened to miss assessments under the threat of losing our benefits.

    It takes guts to do what you did. Good for you.
  • Joanne_ScopeJoanne_Scope Scope helpline, Scope adviser Posts: 190 Pioneering
    Hi @MarkChv,

    I am really happy to hear that your appeal was successful but I would say that people need to be very careful about choosing not to attend assessments.

    My understanding is that the ESA Regulations 2013, 19 (1) states:

    "Where if falls to be determined whether a claimant has limited capability for work, that claimant may be called by or on behalf of a healthcare professional approved by the Secretary of State to attend for a medical examination"

    While this does not overtly say that only assessments by IAS (ATOS) or CAPITA are legitimate, it does seem to state that they can tell you where they want you to go.

    In reality people do get their benefits stopped if they do not attend assessments without good cause.

    It is worth bearing in mind that we only hear about bad experiences and plenty of people have good experiences!

    Joanne 
    Scope
  • zakbloodzakblood Member Posts: 419 Pioneering
    edited October 2019
    thanks, so point out the number of each and put our minds at ease then?

    percentages will be great, the 2018 numbers are shocking, so if the trend since 2012 or longer continues, the % rise each year who score 0 points on a assessment has rising year after year.

    i agree with your points and post, so not challenging it, just wanting your thoughts on the 2019 numbers known so far?

    eg why is there more or a larger % rise than in any previous year since it started?

    thanks and i and everyone else awaits your response 
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    zakblood said:
    thanks, so point out the number of each and put our minds at ease then?

    percentages will be great, the 2018 numbers are shocking, so if the trend since 2012 or longer continues, the % rise each year who score 0 points on a assessment has rising year after year.

    i agree with your points and post, so not challenging it, just wanting your thoughts on the 2019 numbers known so far?

    eg why is there more or a larger % rise than in any previous year since it started?

    thanks and i and everyone else awaits your response 
    Sorry but i'm not sure what you mean by "point out the number of each"
    Proud winner of the 2019 empowering others award. This award was given for supporting disabled people and their families for the benefit advice I have given to members here on the community.
  • zakbloodzakblood Member Posts: 419 Pioneering
    was in reply to above,

    In reality people do get their benefits stopped if they do not attend assessments without good cause.

    It is worth bearing in mind that we only hear about bad experiences and plenty of people have good experiences!
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    It's correct that if you fail to attend a work capability assessment you'll most likely be found fit for work.

    It's also true that lots of people claim both PIP and ESA successfully without any problems but sorry i don't have the most recent percentages without spending time to search google.
    Proud winner of the 2019 empowering others award. This award was given for supporting disabled people and their families for the benefit advice I have given to members here on the community.
  • MarkChvMarkChv Member Posts: 11 Connected
    @Joanne_Scope I was hoping that by sharing my case it'd help others, that's why I originally posted with a photo of the decision letter (minus my NINO). If you would like me to send you or any of your colleagues the photo so that you can see exactly what was said I'm more than happy to, just let me know what email or snail mail address, and hopefully it can help others 
  • Adrian_ScopeAdrian_Scope Testing team Posts: 7,953

    Scope community team

    edited October 2019
    Hello @MarkChv. If you're able to remove the names from the letter (or I can do this for you if you'd like?), you are more than welcome to post it again. 
    If you'd like me to remove them for you, feel free to email it to me at [email protected]
    Senior Community Partner
    Scope

    Your feedback is really important to the development of the online community, so please remember to complete our online community annual survey
  • Joanne_ScopeJoanne_Scope Scope helpline, Scope adviser Posts: 190 Pioneering
    Hi @MarkChv,

    Thank you for offering to do this! Hopefully @Adrian_Scope will be able to remove the personal information.

    I am definitely interested in anything that might help to make the process better for people. :)
    Joanne 
    Scope
  • MarkChvMarkChv Member Posts: 11 Connected
    @Adrian_Scope sent, please use the case in any way to help others
  • Adrian_ScopeAdrian_Scope Testing team Posts: 7,953

    Scope community team

    Thanks @MarkChv. I've shared it below here as I know you were keen for our members to see it and I've also forwarded it to @Joanne_Scope
    I'm really glad this was successful for you but I would still advise members to exercise caution if planning to not attend an assessment, as it can result in being found fit for work. 


    Senior Community Partner
    Scope

    Your feedback is really important to the development of the online community, so please remember to complete our online community annual survey
  • MarkChvMarkChv Member Posts: 11 Connected
    I've just got a letter about yesterday, PIP Tribunal hearing, and I have won that one too (same grounds plus one specific to the PIP case).

    Just to add to what Adrian said, yes, even though I believed in my case it was tough to not attend, get sanctioned, live with no money coming in. I was lucky in that I had the last of some compensation from an accident years ago to scrape by on. I wouldn't want anyone to go through that. I hope that by sharing my case it might help others fight unfair assessments and harassment from the DWP 
  • Joanne_ScopeJoanne_Scope Scope helpline, Scope adviser Posts: 190 Pioneering
    Hi @MarkChv,

    Congratulations on your PIP tribunal?

    Could you pass that to Adrian as well? It would be good to compare the two letters?
    Joanne 
    Scope
  • MarkChvMarkChv Member Posts: 11 Connected
    I'll do that later, just off out for a hospital appointment.
  • MarkChvMarkChv Member Posts: 11 Connected
    I'll do that later, just off out for a hospital appointment.
  • Adrian_ScopeAdrian_Scope Testing team Posts: 7,953

    Scope community team

    Congratulations on the PIP tribunal as well @MarkChv. Best of luck at your appointment today. :)
    Senior Community Partner
    Scope

    Your feedback is really important to the development of the online community, so please remember to complete our online community annual survey
  • Joanne_ScopeJoanne_Scope Scope helpline, Scope adviser Posts: 190 Pioneering
    Thanks @MarkChv!


    Joanne 
    Scope
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    Good news that you won. However, after reading that letter it doesn't mean that a claimant doesn't have to attend a face to face assessment. It means that HMCTS accepted your reasons for failing to attend the assessment and your ESA will now continue.

    It also points out that attending face to face assessments is an essential part of the process and it's your responsibility to make sure arrangements are made in the future if you need to attend future assessments, if you don't then your benefits will lose your benefits, which does state this in the CPAG link i provided above.
    Proud winner of the 2019 empowering others award. This award was given for supporting disabled people and their families for the benefit advice I have given to members here on the community.
  • MarkChvMarkChv Member Posts: 11 Connected
    @poppy123456 the Tribunal agreed that an assessment was indeed needed but that there wasn't the power in law that the DWP thought that there was to order claimants to provide their info or go to third parties. I agreed that assessments were needed to prevent waste, fraud, and abuse but that assessment could be done by my GP or a doctor who is a civil servant, eg from the MoD.
  • [Deleted User][Deleted User] Posts: 231 Pioneering
    The user and all related content has been deleted.
  • Joanne_ScopeJoanne_Scope Scope helpline, Scope adviser Posts: 190 Pioneering
    Hi @MarkChv,

    I do agree with @poppy123456 I am afraid. The letter does not state that you can ask for your GP to do the assessment. It just states that you need to make arrangements to attend when requested again. 
    My reading of the letter is that the failure to attend was set aside because the DWP could not provide a copy of a letter asking you to go to the assessment. This letter is what explains your legal obligations and without this they could not argue that you were legally obliged to attend.
    If they do send a letter next time, you will have been advised of your legal obligations and if you don't go then you risk losing your benefits!
    Joanne 
    Scope
  • MarkChvMarkChv Member Posts: 11 Connected
    Oh their contractor asked me to attend, but as they shouldn't have had my details as per the ammended declaration / authority I signed the appointment was ruled as not legal. I'll ask for a statement of reasons and that should show what I mean if HMCTS will provide it.
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    You're totally misunderstanding what the letter says, i'm afraid. It says the decision was set aside because DWP didn't provide a letter to state the assessment appointment was given.

    You must attend any future assessments that are given because if you don't then you'll be found fit for work for failing to attend. Your GP will not do face to face assessments these are done only by health assessment providers.

    You really should only ask for the statement of reasons and record of proceedings if you're not happy with the decision because these are only written on request. It takes time to write these and could also take months to receive them too.
    Proud winner of the 2019 empowering others award. This award was given for supporting disabled people and their families for the benefit advice I have given to members here on the community.
  • MarkChvMarkChv Member Posts: 11 Connected
    Poppy I know what my case was and what was argued and the Tribunal so I'm not misunderstanding it at all. The DWP not notifying me by letter wasn't even one of my grounds for appeal as they had informed me. What the DWP hasn't informed me or the Tribunal of was the 'chapter and verse' reference of the law that they were claiming that they could use to send me to a third party contractor or force me to give my info over. This is also how I won my PIP Tribunal last week (plus one more issue that was specific to ATOS.
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    I won't argue with you anymore but as clearly stated on the letter you posted above, any future assessments you will need to attend and if you don't you could be found fit for work. I really don't want other forum members reading this and think they don't have to attend work capability assessments, when they certainly do.

    I will leave it at that now and won't make any further comments on this thread.
    Proud winner of the 2019 empowering others award. This award was given for supporting disabled people and their families for the benefit advice I have given to members here on the community.
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