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

Gordon
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8 years 10 months ago #136278 by Gordon

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

Nina wrote: 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?

Most claimants attend a First Tier Tribunals (FTT) unrepresented, especially now that Legal Aid has been withdrawn from this level of appeal.

The submission is your opportunity to explain your day to day limitations in the light of the assessment report and the Decision Makers thoughts, so I would definitely encourage you to prepare one now. If you get a representative in time, they can look at your submission and make suggestions as they see fit and if you don't you will at least have something that puts all of your points across, something that you might struggle to do on the day of the hearing.

Gordon

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Gordon
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8 years 10 months ago #136279 by Gordon

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

Nina wrote: 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.

To be honest I think that the information is too old and given that it is relation to Incapacity Benefit rather than ESA, you may struggle to draw any useful conclusions in regard to the ESA Descriptors, even if you can show that your conditions have not changed or have in fact deteriorated.

Grdon

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Nina
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8 years 10 months ago #136284 by Nina

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

I certainly wouldn't have thought of including it if the DWP hadn't taken their own evidence back that far - is it not worth mentioning the outcome of my previous appeal as a way of refuting that first medical report? I'm relying on Reg 29 (2) (b) rather than the descriptors (I have ME/CFS), and the 2005 tribunal applied the old Reg 27 (b).

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JenJJ
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8 years 10 months ago #136288 by JenJJ

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

Nina wrote: 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?

I'm no expert, just putting together an appeal myself but my understanding is Regulation 29 says that you have limited capability for work which puts you into the WRAG group which means you are able to do work related activity.

It's Regulation 35 which says that you have limited capability for work-related activity which puts you into the support group meaning that you cannot work.

It might be worth checking that you are using the relevant one for your appeal.

I googled "esa appeal solicitors" and came up with a specialist in the London area. They were helpful on the phone and state a fee of £350 to represent at the hearing. I got a solicitor through my local CAB as they volunteer there regularly. Their website states that they specialise in benefit law, although they didn't show up on google searches. So it may be worth asking your local CAB is they know who specialises in your area.

When I spoke to the solicitor about independent medical evidence his view was that it is better if it is someone who has more authority than the doctor that ATOS uses. In my case he said a specialist consultant would be better than a GP.

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Gordon
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8 years 10 months ago #136291 by Gordon

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

Nina wrote: I certainly wouldn't have thought of including it if the DWP hadn't taken their own evidence back that far - is it not worth mentioning the outcome of my previous appeal as a way of refuting that first medical report? I'm relying on Reg 29 (2) (b) rather than the descriptors (I have ME/CFS), and the 2005 tribunal applied the old Reg 27 (b).

It's your claim so you should of course include any information that you believe will help you to an award

The Exceptional Circumstances Regulations operate differently from the ESA Descriptors in as much that the claimant must show that they meet the criteria for Reg.29 or Reg.35 specifically at the time of the Decision, even if you were to show that you met them six months before this would still be insufficient, if they were unable to show that on the balance of probabilities that they still met them when the Decision was made.

Gordon

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petrocelli
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8 years 10 months ago #136334 by petrocelli

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

Hi Nina

Don't know if will be of any use to you, if I'm allowed to put Solicitors names in this post.

Like yourself, I have trawled and trawled Solicitors. I become increasingly despondent when they advertise themselves with all the right credentials, until you contact them to be told actually no, we don't cover that area. However, that said, because you live in the London area, you may find that actually the opposite to be correct. Certainly from Bristol, Dorset, Exeter, and further SW, despite advertising to the contrary, I keep hitting a brick wall.

Not even Neil Bateman, via email, seems able to point me in the direction of a Solicitor, in my area.

Check out:

www.duncanlewis.co.uk/welfarebenefits.html

Good luck Nina.

Anyone out there have a known Solicitor in SW, I'd love to hear from them.

Many thanks to all Memb's & Mod's on this site for helping to keep me going for the last five years...................................as with most things in life, it's only those who are going through the same experiences/processes, that can appreciate the full toll of the effects on one's life.

Sincere regards

P.

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

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