ESA Migration for PCA Exempt

Although it may be necessary to provide supporting evidence to substantiate your claim, please remember as you are currently receiving IS on the grounds of disability, when you transfer to ESA the burden of proof rests entirely with the Secretary of State (DWP) to either show that you are entitled, or not entitled to the allowance. If it was a new claim for ESA, the burden of proof would rest with the claimant to prove that they would be entitled to the allowance.

As it is a continuing claim albeit a transfer from IS and/or IB to ESA, the responsibility lies with the DWP to gather all the necessary information to show "on the balance of probabilities" that you either continue to receive ESA or taking into account all the evidence, you no longer qualify for the allowance. This in my view requires liaison with all the healthcare professionals assigned to a claimant's care, which is the responsibility of the DWP and not the claimant.

The work capability assessment is not restricted to the information solely given at a medical assessment, and recorded by the approved disability analyst on form ESA85 (the medical report). The final decision by the ESA decision maker must take into account all the evidence. Indeed, since the production of the Harrington Report it has been deemed unacceptable for ESA decision makers to simply rubber-stamp the medical assessment report, without recourse to the totality of other (medical) evidence.

There may of course be a requirement for a claimant to seek (further) medical evidence in order to support an appeal against an adverse ESA decision, but in the first instance a claimant is entitled to question whether the DWP has fully discharged it's burden of proof in terminating ESA entitlement, and if not the DWP should be invited (neutral word) to act accordingly, which could form part of the reconsideration process. This is particularly important, as the government seem keen to make more use of this process to reduce the number of expensive appeals.

In the past the reconsideration process merely paid lip service to the original adverse decision in benefit entitlement cases, but it would now seem an ideal opportunity to put the DWP on notice that you fully intend to require them to discharge the burden of proof which would be crucial to any potential appeal, should it be necessary?

A brilliantly argued case, CD, have you ever been a lawyer?

No, but I worked for the DHSS and subsequently the DSS both as an Insurance Officer then as an Adjudication Officer for over ten years, during which time some of my work involved the preparation of appeal cases at tribunal level.

Although I never worked in the branch of the Department which deals with sickness/disability claims, the general adjudication process is virtually the same for all social security benefits, although admittedly there have been some subtle and altogether negative changes since the Secretary of State assumed responsibility for all social security benefit decisions in 1998.

given that the onus is on the dwp to prove that my condition has not changed since i became pca exempt..could i, theoretically just put down on my eas50 form..."see previous details" when it arrives..or words to that effect.
by the way, i will,personally, not be starting a new claim...just migrated over from ib to esa.
granted, i'm aware that this attitude is bound to come back and bite me, but theoretically, would i be correct,

many thanks

You could, but being eligible for IB exemption does not, of itself, mean that you are entitled to ESA. It would depend on the basis on which you were exempt and what information the DWP had about you.

didsmith wrote:

given that the onus is on the dwp to prove that my condition has not changed since i became pca exempt..could i, theoretically just put down on my eas50 form..."see previous details" when it arrives..or words to that effect.
by the way, i will,personally, not be starting a new claim...just migrated over from ib to esa.
granted, i'm aware that this attitude is bound to come back and bite me, but theoretically, would i be correct,

many thanks

In theory, if you were awarded ESA previously and your condition is completely identical you could simply state that your condition is unchanged.

In practice, you cannot ask the DWP to look at your last ESA50 unless you are confident that they still have it.

It's also quite unlikely in most cases, that a claimant's condition will be completely unchanged, so it's usually best to give an update. If you keep a copy of the text you sent with your previous ESA50 you can always edit and update it to ensure that it's completely accurate, and will therefore be consistent with anything you say at a medical or tribunal hearing.

Derek