steve_h
Welfare Rights Caseworker, Advocacy in Wirral, Birkenhead, Wirral
Member since 06th Mar 2006
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RE: ESA appeal when failed to attend medical - refusal to pay pending appeal
Wed 17-Mar-10 01:34 PM |
Reg 6 of the ESA regs.
The assessment phase – claimants appealing against a decision
6. Where the period for which the claimant is entitled to an employment and support allowance commences and the claimant has made and is pursuing an appeal against a decision which embodies a determination that that claimant does not have limited capability for work, the assessment phase in relation to that claimant ends when the appeal is determined by an appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998(72).
reg 23 of the ESA regs
Claimant may be called for a medical examination to determine whether the claimant has limited capability for work 23.—(1) Where it falls to be determined whether a claimant has limited capability for work, that claimant may be called by or on behalf of a health care professional approved by the Secretary of State to attend for a medical examination.
(2) Subject to paragraph (3), where a claimant fails without good cause to attend for or to submit to an examination listed in paragraph (1), the claimant is to be treated as not having limited capability for work.
(3) Paragraph (2) does not apply unless written notice of the time and place for the examination was sent to the claimant at least 7 days in advance, or unless that claimant agreed to accept a shorter period of notice whether given in writing or otherwise.
Therefore if a claimant fails to attend a medical they are treated as not having limited capability for work. Thus if an appeal is made then reg 6 kicks in and ESA must be paid pending an appeal.
And your local processing office is wrong, it is not done like their way all over the country because our office pays ESA pending such appeals.
I suspect they are getting confused with the rules concerning IB/IS claims, where reduced rate IS is definately not payable pending a failure to atend a medical appeal.
I suggest getting in touch with the Processing office manager or ESA manager to sort this out.
If they refuse, then consider a Judicial Review.
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