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When you CAN refuse to take part in a face 2                       face! For ESA only.

An Upper Tribunal judge has made some comments which clarify when you are allowed to refuse to take part in the face-to-face Work Capability Assessment for ESA.

According to the UT judge, you are NOT entitled to insist that you are seen by a medically qualified doctor, because the law allows the DWP to say who carries out Work Capability Assessments.

This is not a full Upper Tribunal decision but it is a sign of the way that the Upper Tribunal is likely to decide when they do make a full decision.

This decision applies only to ESA and not to PIP or DLA.

This decision means that it is not recommended for you to insist that a fully qualified doctor carries out your Work Capability Assessment for ESA, regardless of how rare or complicated your medical condition might be. You have to work with the assessor appointed by Maximus, or the DWP will refuse your claim, and a Tribunal will now probably back them up.

Maximus has published a list of medical conditions which they say should be assessed by a doctor. We don’t know if they will change their minds about this now. If you have one of these conditions, you should ask before your assessment if a doctor will be carrying it out. We don’t know what your legal position would be if you have been told by Maximus that a doctor should assess you but the assessor turns out not to be a doctor. The judge’s remarks suggest that you wouldn’t have legal reasons to refuse the assessment even if it goes against Maximus’ policy.

This analysis is brought to you by BuDS Benefit Information Project. It is general information only and you should take advice about your specific case.

You can read the full judgement here:…/ch-v-secretary-of-state-for-work-and-p…

©A1 ESA/DLA/PIP Benefits Help and Support (UK only)

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