ESA Appeal

abcd69

Welcome to the forum.

To try and answer your questions.

As you have identified the ESA test is of your mobility in addition to looking at your ability to walk with any aids that can be reasonably used, the test also considers your ability to self-propel a manual wheelchair over equivalent distances.

Your ability to walk or propel a wheelchair can be limited by significant discomfort or breathlessness, it is important to understand that this does not mean without pain.

Significant discomfort is not defined further in the legislation, the only thing I can say is that it is considered to be less than significant pain.

There are typically three reasons why a claimant would be unable to use a wheelchair; there are reasons why they cannot use one;

- there may be practical issues such as storage although this has been somewhat depreciated by recent UTT Decisions, or the claimant has received medical advice not to use one.

- the claimant suffers from angina, asthma or a similar condition which would reasonably be expected to be aggravated by their operating a wheelchair.

- or lastly, that they have a physical condition such as an injury or condition such as Arthritis effecting their hands or arms through to the Upper chest which would result in significant discomfort.

From your post the latter may apply, your issues are that the injury is old, you say you are in pain, but are you receiving pain treatment? Is the pain sufficient to be described as significant discomfort?

The Standing and Sitting test was amended at the beginning of 2013 to read Standing, Sitting or a combination of both, so if you move from one to another and even do this repeatedly the clock does not stop, so even though you can only sit in a chair for 15 minutes if you can then stand for 45 minutes, or could stand for 5 minutes and then sit for 15 minutes again, and so on then you will not score points.

You mention lying on a settee, certainly this would not be considered as Sitting although I do remember one ATOS assessor trying to argue that it still fell within the Descriptor, but that was some time ago, but do you do so because it is easier or more comfortable for you to do so, rather than having to do so because you cannot sit? Your earlier statement suggests the former at least in part.

The final aspect of the Standing and Sitting test is the claimant remaining at a workstation for the majority of the time, the key point here is that it is not all of the time, it is acceptable for the claimant to move around at the workstation. If you would need to walk away due to significant discomfort or exhaustion, then you need to explain in detail what this means and show that it would reasonably mean your leaving the vicinity of the workstation.

I would be careful of quoting UTT Decisions unless you fully understand the detail and implications of the Decision you are referencing, it is unusual for UTT Decisions to make black and white statements about what is or is not included in a Descriptor. You also need to check that the legislation has not been changed since the Decision was made potentially making the Decision redundant, that more recent Decisions do not make it obsolete or that their are not Decision that contradict the one that you are looking at.

The following page has summaries of the more important Decision related to ESA

www.disabilityalliance.org/how-we-can-he...nd-support-allowance

You can also search the TS database.

www.osscsc.gov.uk/Aspx/default.aspx

Gordon

abcd69

Your primary goal at the MR and if necessary at an appeal is to show that you meet the criteria, so you should explain the things you mention in your post to the DWP, you may have done this already on the ESA50 but you need to go through your form and evidence, the assessment report and our ESA Claim guides and make sure it is clear why you meet the Descriptors.

Gordon