New benefit likely to generate key documents for defendants

A new benefit likely to be received by many claimants will result in a significant amount of documentation being created which will include information of much relevance to CRU appeals and reviews, but of wider application generally to their personal injury claims.

Employment and Support Allowance (ESA) is the new benefit paid to people whose ability to work is limited by ill health or disability. From 27 October 2008 it replaced incapacity benefit and income support paid on the grounds of incapacity for new claimants. Those in receipt of IB or IS will be migrated gradually onto the ESA. This forms part of the Government’s welfare reforms, which aim to get one million people off incapacity benefits by 2015.

The flowchart shows the stages a claimant will have to go through once a claim is made.

Applicants will fill in a questionnaire, similar to that for the old IB and then will undergo a work capability assessment and possibly a medical assessment. Claimants with a limited capability for work will be divided into two separate groups – the “support group” and the “work-related activity group”. Those falling within the work-related activity group will have a further assessment and undergo a series of six work-focused interviews, addressing their obstacles to employment and their motivation, their skills, strengths and abilities, with the purpose of getting them back into suitable work. The support group, being the more serious cases, are exempt from the further assessment and interviews.

Defendants and their representatives would be well advised to obtain disclosure of DWP records to include those listed below. These documents will be specifically focused upon the barriers to employment, which typically constitute the most expensive element of and therefore the main battleground in personal injury claims.

Cross analysis between these documents and the medical evidence and medical records, will give defendants the best ever chance of tripping up unwary claimants. New key documents for defendants and their insurers to look out for will be:

  • ESA50 – the questionnaire completed by the claimant to apply for ESA
  • The DWP decision document(s)
  • ESA 85 – the DWP Healthcare Professional’s medical report
  • The work-focused Health Related Assessment (WFHRA) report
  • Records of the work-focused interviews
  • The work-focused Interview Action Plan

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