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ESA Reg 29 (2) (b) - what evidence can I give?

Nina
Topic Author

8 years 10 months ago #135862 by Nina

ESA Reg 29 (2) (b) - what evidence can I give? was created by Nina

Having been on IB/ESA continuously for 10 yrs, I failed an Atos medical in Jan and now have an appeal hearing on 29 June. I believe Reg 29 (2) (b) applies to me - i.e. that being found capable of work constitutes a substantial risk to my health, because of my illness (ME/CFS). I have a letter from my GP that supports this, but what other evidence can I provide?

I haven't being seen at any hospitals recently; I've been through 2 different hospital programmes in the past but with ME/CFS it's all about management rather than treatment, so they discharge you when you complete the course rather than when you're better...

I could get a letter from my massage therapist, but will it be taken seriously by the tribunal? Also, I could get one from the teacher of a Mindfulness for Health course I recently took, and from someone at the amateur orchestra I sometimes play in - they will both be able to say that I can only manage around 90 mins of concentrated activity once a week, and not even that every week. But are letters like that worth including?

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Nina
Topic Author

8 years 10 months ago #135865 by Nina

Replied by Nina on topic ESA Reg 29 (2) (b) - what evidence can I give?

Does anyone know of a good benefits advisor/lawyer who could represent me at my ESA appeal on 29 June? I am in North London (Haringey). So far I have met 1 person very willing to help but who doesn't know the law, and 1 person who certainly knows the law but doesn't seem at all helpful. I have asked for a referral to the Free Representation Unit, but that has to go through the unhelpful-seeming person so I'm not 100% confident that it's being done. I have family who could pay if necessary, but don't know how to find someone good to do the job. Any recommendations for individuals, law firms, or rights organisations? Maybe someone trained by B&W?!

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bro58

8 years 10 months ago - 8 years 10 months ago #135877 by bro58

Replied by bro58 on topic ESA Reg 29 (2) (b) - what evidence can I give?

Nina wrote: Does anyone know of a good benefits advisor/lawyer who could represent me at my ESA appeal on 29 June? I am in North London (Haringey). So far I have met 1 person very willing to help but who doesn't know the law, and 1 person who certainly knows the law but doesn't seem at all helpful. I have asked for a referral to the Free Representation Unit, but that has to go through the unhelpful-seeming person so I'm not 100% confident that it's being done. I have family who could pay if necessary, but don't know how to find someone good to do the job. Any recommendations for individuals, law firms, or rights organisations? Maybe someone trained by B&W?!

Hi N,

Welcome to Benefits and Work

I have merged your two posts in the one topic for continuity.

Someone else is answering your other post.

I am afraid that we do not offer personal recommendations.

Your best bet would be to put Welfare Rights/Advice into Google for your District/Postcode.

If you can pay for a professional Rep, you should search all Solicitors in your area, some of the larger companies have Welfare Rights Departments.

Whoever, you manage to get, paid or unpaid, it is advisable to use a Rep/Solicitor who has experience of ESA (Benefits) Appeal Tribunals.

Local Councils (LA) sometimes have Welfare Rights Dept, as do some Housing Associations if you are one of their tenants.

There are also Law Centres, CAB, DIAL, or Age UK if you are over 50.

It is hard to gain free representation now, due to the Government withdrawing Legal Aid for Welfare Rights issues.

bro58

Last edit: 8 years 10 months ago by bro58.

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Gordon
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8 years 10 months ago #135878 by Gordon

Replied by Gordon on topic ESA Reg 29 (2) (b) - what evidence can I give?

Nina

There are a number of elements to Regulation 29, you will need to show that you need each of them to stand a chance of qualifying. It reads

(b) you suffer from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if you were found not to have limited capability for work.

and this has been amended to include

- reasonable adjustments being made in your workplace; or
- taking medication to manage your condition that has been prescribed by a registered medical practitioner who is treating you.

So first you must show that your issues are the result of a "specific disease or bodily or mental disablement", basically you need to state the underlying condition that would cause the risk.

Secondly you must show that there would be "substantial risk" to you or someone else if you were required to work, this includes any risks associated with you going to and from work. Substantial is not defined but looking to the dictionary it is stated as being "of considerable importance, size, or worth", you should take it as meaning far more than the average claimant might experience.

Next you need to show that there are no reasonable adjustments that an employer might make to take account of your limitations. Remember ESA considers your ability to do any job not just the one that you may have been doing or one that you are qualified to do, so a labourer might be capable of doing an office job, a wheelchair user might be given office space on the ground floor.

Lastly, you need to show that the risk is not reduced by your taking any prescribed medicine or therapy. The key word here is "prescribed", the DM cannot look up something on the internet and apply it to you, also if there is Good Cause why you would not take any prescribed medicine or undertake a therapy, then you need to make this clear in your submission.

As to evidence, you need it to deal with the issues above and have sufficient knowledge of you for their statements to be credible.

Gordon

Nothing on this board constitutes legal advice - always consult a professional about specific problems

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Nina
Topic Author

8 years 10 months ago #136268 by Nina

Replied by Nina on topic ESA Reg 29 (2) (b) - what evidence can I give?

Thanks for all this info. I am having huge trouble finding anyone to represent me, and it's looking increasingly likely that I'm going to have to do without. Do most people have a representative at their hearing? I had one last time (10 yrs ago) and she had prepared an argument with reference to upper tribunal decisions etc - do I need that sort of thing?

Also, I may yet find someone to help but extra evidence and written submission need to be sent by Monday 22 June - should I go ahead and write my submission on my own (with the BW guides, obviously), or is it better not to do a written sub if I can't get any help with it?

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Nina
Topic Author

8 years 10 months ago #136275 by Nina

Replied by Nina on topic ESA Reg 29 (2) (b) - what evidence can I give?

Another question: the DWP's submission includes an Atos report from 2004, which resulted in my Incapacity Benefit being stopped. I successfully appealed against that decision in 2005, but they haven't included any mention of that in their submission. I still have a copy of the tribunal's decision, and the extra evidence that I submitted (including a very detailed response to the medical report, pointing out everything that was wrong, plus letters from my GP and two hospital drs). Should I submit any, or all, of that as extra evidence this time? It seems unfair that the DWP have included that old Atos report that I successfully challenged.

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ESA Reg 29 (2) (b) - what evidence can I give?

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