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

OK, I'm working on my own submission to send off (by email) on Monday... The DWP's sub includes 5 Atos medical reports - 2004 and 2009 (Incapacity Benefit), 2012, 2013, 2015. My ESA only got stopped after the Jan 2015 report. But looking through the others, I'm feeling really worried...

I can't see how I passed the 2013 examination - he doesn't seem to have applied any descriptors, including the non-functional descriptors/exceptional circumstances, and has written in the summary "...she is unlikely to have significant functional difficulty in mobilising, sitting or standing, reaching, picking up things and manual dexterity." This report also contains various statements about what I can manage each day that are totally untrue.

The 2012 report (this one was by a Dr) comes closest to an accurate description of my illness but says in the Prognosis section, "I advise that a return to work could be considered within 6 months." He did not apply any exceptional circumstances regs but did apply W(c) for Activity 1 - cannot mobilise/repeatedly mobilise 100 metres etc. This seems to be only 9 points?? So again I can't see how I passed this medical.

2004 was successfully challenged at an appeal back then; 2009 is shockingly inaccurate/untrue in numerous ways but resulted in my benefit (IB) being continued.

The question is, do I need to challenge the statements/findings/LIES! in any of these 4 older reports? Will the panel be taking any notice of them? Or do I just need to address the most recent one?

I'm arguing that Reg 29(2)(b) should apply, and I had thought that was how I'd passed the 2012 and 2013 assessments - now I see the reports I'm worried that it's going to be difficult to make that argument, as that Reg hasn't been used at all. Old IB Reg 27(b) was applied by the tribunal in 2005, but that seems too long ago to be relied on now. I do have a good letter from my GP explaining how working would be a serious risk to my health.

I was also going to make the argument that my condition is unchanged (don't the DWP have to prove it has changed if they previously awarded benefit?) but the old reports are so inconsistent I feel like that may be tricky - and obviously I don't want to say my condition is unchanged from 2013 when the report seemed to say I was fine!?

Thanks, Petrocelli. FWIW, I called Duncan Lewis and they quoted £600 for submission only (no representation); it seemed like the person who was going to do the work was quite junior (he put me on hold to ask his supervisor something), and I wasn't convinced he had much expertise. I spoke to someone at a firm called Edwards Duthie, and he gave a lower price (£480) and sounded like a real ESA expert - but didn't have any appointments available until after my submission deadline. Looks like I'm going it alone!

Nina, I'm certainly no expert so I'd caution you about relying on my advice without discussing it with a solicitor first but whilst trying to assist my friend I found some UTT decisions that might be useful to you.

Under Burden of Proof on this page summarising UTT decisions www.disabilityrightsuk.org/how-we-can-he...n-making-and-appeals R(S)/3/90 suggests that at re-assessment the burden is on the DWP to show that the claimant is no longer entitled (which CSDLA/637/2006 seems to suggest means showing that the claimant's condition has improved compared to when he/she was previously entitled).

CSDLA/637/2006 and CSDLA/822/2006 also seem to suggest that where the DWP has failed to record why the claimant was entitled at the previous assessment (i.e. failed to score against the descriptors or failed to otherwise record what your condition was at that time that made you entitled), it will be especially hard for the DWP to demonstrate that there has been a relevant change of circumstances to justify withdrawing entitlement.

It's not clear why you were previously awarded ESA and Gordon is more knowledgeable than I, so it seems that if you were awarded it under Reg.29 then this burden of proof does not apply. If that wasn't the reason however (or they haven't properly recorded the reason), you may be able to argue that the DWP haven't established an improvement in your condition that would justify withdrawing your entitlement.

OK, putting the finishing touches to my submission to email it to HMCTS today... I've shown it to a relative who's a lawyer in another country, and he's asked whether it's possible to be found capable of part-time work, or working from home. I haven't seen this mentioned anywhere so I'm guessing not, but what is the standard of work they're using to decide if you're capable of it? My dr thinks it's full-time work outside the home, but I wanted to check. Do I need to be making a case that any work at all, even an hour or two a week, perhaps done from home, is impossible? Thank you, everyone, for the advice!