Wife kicked off ESA (from SG). Please help!

We have just moved house this weekend (only locally), and have today been given the bombshell from DWP that they no longer consider my wife unfit for work and are removing her from the support group.

As briefly as possible:

My wife had worked the same job for 11 years. She is still employed but on extended sick leave.

Around 2 years ago she fell down the full length of a flight of stairs in work, breaking her foot, tearing the tendons in her leg and causing spinal and nerve damage due to the way in which she fell (one leg behind, one leg in front). The orthopaedic surgeon said he can't operate due to the location of the damage, and my wife now has permanent nerve pain, partial paralysis of her left leg and other issues. She is in constant pain and now of very limited mobility.

She also had a baby in March this year and, because she is breastfeeding, can no longer take her prescribed pain killers (Tramadol 100mg, Gabapentin and others). Her physiotherapist has said she can not continue treatments (including steroid injections into her spine) until the baby is weaned. This has made her already severe pain almost unbearable, and she's in tears in bed as I type this.

She had been in the support group of ESA for almost 2 years.

During the latest round of ESA re-assessments, she went for another medical a few weeks ago. The nurse was very rude, kept interrupting us, and after a few minutes said we should leave, as my wife was "clearly in pain and I can fill in this form for you with what I already know". The nurse also said (quote):

"I have your medical records dating back to 1986 and there is nothing about any back problem".

I replied that she had a single A4 sheet printed off from the GP with a summary of my wife's conditions, and that did not constitute 'all of her medical records since birth'. In fact, I said, the back problem was listed under, and being treated as, a consequence of the broken leg as the same ortho and physio team found - and is dealing with - both issues as a result of the same incident. We provided the physio and surgical team's details as part of the 'people who we can ask about your condition', but the nurse said she won't be doing that.

We then received a phone call from a DWP decision maker today to say that my wife was no longer going to receive ESA at any rate.

The reason given was that the medical professional at the latest examination had stated my wife had no difficulty sitting, no difficulties standing, and that she could walk without issues. She received 0 points for the assessment, which the decision maker said was rare.

The decision maker continued to say that the medical professional also said my wife could return to work if she ended her current employment and sought office work in a manual wheelchair.

The issues we have with this (aside from the obvious disagreement and upset/financial harm it has caused):

1) If my wife has zero mobility issues and can sit, stand and walk without problems as alleged, why is she also being told she would need a wheelchair to return to different employment?

2) My wife also receives Industrial Injuries benefit and at a very recent assessment (about a week before the ESA one) she was assessed as 30% disabled due to severe mobility issues, spinal nerve damage and visually evident impairment.

3) My wife also receives PIP at the enhanced rate for both components, because she was deemed after assessment to be unable to mobilise safely or repeatedly for 20 metres or less.

The decision maker told my wife on the phone that the medical evidence about her conditions was over-ridden by their medical professional's assessment, and that they do not have to consider evidence from Industrial Injuries assessments/awards or PIP.

We are looking at asking for a mandatory reconsideration but would like some input in how best to approach this. I have already paid for membership and read the appeal guide, but any pointers would be appreciated. Thanks so much in advance for any help or advice.

Thanks for that Gordon. We haven't received the ESA85 yet but the ESA65 came today with an explanation of the decision. I'm sure you've heard this before many times, but it was full of lies from the 'healthcare professional'.

It says my wife is deemed to be able to walk more than 200 metres, because the assessor saw her walk 10 metres slowly with the aid of a crutch. In addition my wife reported that when going outside she leans on our baby's pram to get to our car, which is about as far as she can walk overall. The HCP changed that to 'Mrs X reports she can walk outdoors while leaning on her baby's pram, but doesn't say how long for, but I deem it to be at least 200 metres.'

In fact we told her clearly my wife can only walk as far as the car, and only then on a good day.

They also made great song and dance about the "eleven typed pages of attachments describing the claimant's condition, which show she is capable of using a keyboard and mouse to perform work related duties'. In fact her mum typed it up for her over the course of a few days while she dictated it.

The HCP also said my wife could 'easily walk up or down two steps, sit or stand for over an hour'. This is despite evidence to the contrary, and the HCP backed up her assertion with 'and I saw the claimant sit in a chair, rocking in pain, for 27 minutes during the assessment. Therefore I deem she can sit or stand without difficulty for an hour or more'. Contradictory much?

There are others, but I'll get my wife to request the ESA85 today and post back when it arrives. Her GP has placed her on diazepam/vallium this week in addition to stronger pain killers, stating that her condition is much worse than when she's seen her in the past and that she needs re-referral for investigations into the causes of the nerve damage. They also think she needs to see a neurologist, and again all this was included in the original claim but has been ignored.

Any pointers in the interim would be gratefully received. Thanks again.

Hi Gordon,

Many thanks again. The ESA85 arrived and pretty much just repeated everything I said above. I am currently working through your claim guide (as linked above) and marrying it against her original claim and the ESA85 to root out inconsistencies and relevant points for argument. As and when this is complete (I realise the clock is ticking) I will come back to clarify them with you if that's OK?

In the interim what is the best approach regarding claims? At present we are just managing on less money, but DWP have told my wife to claim JSA. Since she has a sick note and the GP has said her condition is worse than ever, I know JSA will just tell her to claim ESA. It's a bit of a circular argument. Is she best just holding fire for the MA? I did wonder whether it was worth just putting in a fresh ESA claim based on the new information (extra medication, sedatives, neurology and surgical referrals etc) but I do realise this can also form the basis for the MA arguments. What do you think?

Many thanks as always. Kind regards.

RainmakerRaw wrote: Hi Gordon,

Many thanks again. The ESA85 arrived and pretty much just repeated everything I said above. I am currently working through your claim guide (as linked above) and marrying it against her original claim and the ESA85 to root out inconsistencies and relevant points for argument. As and when this is complete (I realise the clock is ticking) I will come back to clarify them with you if that's OK?

In the interim what is the best approach regarding claims? At present we are just managing on less money, but DWP have told my wife to claim JSA. Since she has a sick note and the GP has said her condition is worse than ever, I know JSA will just tell her to claim ESA. It's a bit of a circular argument. Is she best just holding fire for the MA? I did wonder whether it was worth just putting in a fresh ESA claim based on the new information (extra medication, sedatives, neurology and surgical referrals etc) but I do realise this can also form the basis for the MA arguments. What do you think?

Many thanks as always. Kind regards.

Hi RR,

It is up to you whether to claim JSA whilst your MR is ongoing, I suppose a major factor is whether you can manage financially.

You are correct, in that if your wife tries to claim JSA whilst also presenting a fit note, they will probably refuse her JSA claim.

Therefore, if she does need to claim JSA for the income she should keep hold of her fit notes until the MR process is over, then if unsuccessful, once your appeal has been lodged and accepted by the Tribunal Service, she can present the fit notes to DWP and revert back to ESA Assessment Rate.

My previous post : Here may explain the process better for you.

If you were to consider making a fresh claim on the grounds that your wife's condition has changed or deteriorated, new rules have been in place regarding ESA "repeat claims" since 30/03/15.

See : My Post from earlier on today.

bro58