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ESA assessments: challenging refusal and clarifying the legal position

Law Centre (NI) successfully challenged at Social Security Commissioners a Tribunal Decision to refuse Employment and Support Allowance.

We advised in a case that clarified the meaning of 'understanding verbal and non verbal communication' in the work capability assessment. The lady had been referred to the Law Centre by Belfast Citywide Tribunal Service because she had significant difficulties which they felt should be sufficient to qualify for the benefit.

We argued that the medical HCP report had inaccurately recorded the time the appellant was able to sit, and she should therefore be awarded points under ESA descriptor 2(c) (sitting for at least an hour without significant discomfort). The Commissioner agreed and sent the case back to a new tribunal.

We also pointed out that, as our client had serious difficulties with hearing, the tribunal had been wrong in deciding that she should not qualify under ESA Activity 7 (the ability to understand messages). The fact that she could understand written messages was not a sufficient reason to refuse her on those grounds. The Commissioner and the Department both agreed with us on this point.

Advisers are welcome to refer similar cases and other social security cases involving complex issues. Our advice line is open Monday to Friday, 9.30am to 1pm: 028 9024 4401

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