- Posts: 6
× Members
Physical pain
- Graham
- Topic Author
- Offline
Less More
9 years 5 months ago #147390 by Graham
Physical pain was created by Graham
Can someone confirm that the Medical Boards and Appeal Tribunals doesn't take pain into account or was I told a pack of lies by the professionals?.... I have spinal problems with wedge fractures which are trapping nerves and causing chronic pain yet the Medical Board assessors and the Appeal Tribunal panel both informed me that they do NOT take pain into account? Thank you.
Please Log in or Create an account to join the conversation.
- Gordon
- Offline
Less More
- Posts: 51284
9 years 5 months ago #147403 by Gordon
Is this in regard to your ESA claim?
This is not a simple question to answer.
First of all, there is no requirement for the ESA activities to be performed without pain, so if your argument was that you cannot do them without pain this may have been insufficient.
ESA uses the phrase "significant discomfort", this is not defined in the legislation, but Case Law defines it as being less than significant pain.
This is where it becomes more complicated.
The DWP class significant discomfort as a physical symptom as a result it is only relevant to the ESA Physical Descriptors, questions 1-11 on the ESA50, you are very unlikely to score points in the mental health section (questions 11-17) for issues related to pain.
Some of the ESA Descriptors specifically use the term "significant discomfort" and for these there should be no argument that it is a factor that an appeal panel should consider.
For those that don't explicitly reference the phrase there is still a presumption that it is a factor, although you would need to argue this.
If the issue is related to PIP, then the situation is less clear as PIP does not make any specific reference to pain or even discomfort, unlike it's predecessor DLA which used the phrase "severe discomfort", however, all PIP Activities must be performed safely and it would certainly be reasonable to assume that this includes issues such as pain.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Physical pain
Graham wrote: Can someone confirm that the Medical Boards and Appeal Tribunals doesn't take pain into account or was I told a pack of lies by the professionals?.... I have spinal problems with wedge fractures which are trapping nerves and causing chronic pain yet the Medical Board assessors and the Appeal Tribunal panel both informed me that they do NOT take pain into account? Thank you.
Is this in regard to your ESA claim?
This is not a simple question to answer.
First of all, there is no requirement for the ESA activities to be performed without pain, so if your argument was that you cannot do them without pain this may have been insufficient.
ESA uses the phrase "significant discomfort", this is not defined in the legislation, but Case Law defines it as being less than significant pain.
This is where it becomes more complicated.
The DWP class significant discomfort as a physical symptom as a result it is only relevant to the ESA Physical Descriptors, questions 1-11 on the ESA50, you are very unlikely to score points in the mental health section (questions 11-17) for issues related to pain.
Some of the ESA Descriptors specifically use the term "significant discomfort" and for these there should be no argument that it is a factor that an appeal panel should consider.
For those that don't explicitly reference the phrase there is still a presumption that it is a factor, although you would need to argue this.
If the issue is related to PIP, then the situation is less clear as PIP does not make any specific reference to pain or even discomfort, unlike it's predecessor DLA which used the phrase "severe discomfort", however, all PIP Activities must be performed safely and it would certainly be reasonable to assume that this includes issues such as pain.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
The following user(s) said Thank You: Graham
Please Log in or Create an account to join the conversation.
- Graham
- Topic Author
- Offline
Less More
- Posts: 6
9 years 5 months ago #147495 by Graham
Replied by Graham on topic Physical pain
Thank you Gordon,
It is for the ESA Support Group claim and I thought relative for the Physical descriptors. I scored more than ample points to be kept on ESA they would not place me into the Support Group, I appealed and attended a tribunal in front of a Judge, Doctor and a Clerk and during the hearing I was told by the Doctor and Judge that every answer I gave to their questions on mobility must NOT include me mentioning "I cannot do it without being in pain or discomfort".... They stated that pain and discomfort does not count. I went on to have my appeal turned down.
I have been on ESA with no money for 3 years and been to 1 Medical Board and another is being lined up within the next week or two. I am clearly incapable of any type of employment (the tribunal admitted that) but are reluctant to place me in the Support Group!
It is for the ESA Support Group claim and I thought relative for the Physical descriptors. I scored more than ample points to be kept on ESA they would not place me into the Support Group, I appealed and attended a tribunal in front of a Judge, Doctor and a Clerk and during the hearing I was told by the Doctor and Judge that every answer I gave to their questions on mobility must NOT include me mentioning "I cannot do it without being in pain or discomfort".... They stated that pain and discomfort does not count. I went on to have my appeal turned down.
I have been on ESA with no money for 3 years and been to 1 Medical Board and another is being lined up within the next week or two. I am clearly incapable of any type of employment (the tribunal admitted that) but are reluctant to place me in the Support Group!
Please Log in or Create an account to join the conversation.
- Gordon
- Offline
Less More
- Posts: 51284
9 years 5 months ago #147516 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Physical pain
Graham
Based on your posts you would seem to have a good case for an appeal to the Upper Tribunal on the basis of an Error of Law? .
The first stage to your doing this is to request a Statement of Reasons .
It may have just been a throw away remark, but you will only be placed in the Support Group because you meet one or more of the associated criteria, not because you are incapable of any employment.
Gordon
Based on your posts you would seem to have a good case for an appeal to the Upper Tribunal on the basis of an Error of Law? .
The first stage to your doing this is to request a Statement of Reasons .
It may have just been a throw away remark, but you will only be placed in the Support Group because you meet one or more of the associated criteria, not because you are incapable of any employment.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Please Log in or Create an account to join the conversation.
- Graham
- Topic Author
- Offline
Less More
- Posts: 6
9 years 4 months ago #147678 by Graham
Replied by Graham on topic Physical pain
Hi Gordon, I received the Statement Of Reasons and they stated I failed to meet any of the 3 descriptors as I could touch my forehead, Pick up a plastic cup and put a pen in my top pocket, the pain and discomfort was not mentioned. This was 3 years ago and after the tribunal I met with a C.A.B. advisor to ask if there was an error in law and he wasn't much help but told me that once a Judicial Panel made their decision that I could not be placed into the Support Group, that was final and never can be repealed concerning the same illness or disability.
I will tell you the truth, I really feel bitter about it as I know they lied to me to get what they wanted and I have been in agony and without the benefit money since (money that I believe should never have been taken from me in the first place).
Can you please tell me if the C.A.B. advisor was right in that I can never appeal again, I have another Medical Board coming up and would it be possible within the law to appeal to an upper tribunal if they decline my request again?
I will tell you the truth, I really feel bitter about it as I know they lied to me to get what they wanted and I have been in agony and without the benefit money since (money that I believe should never have been taken from me in the first place).
Can you please tell me if the C.A.B. advisor was right in that I can never appeal again, I have another Medical Board coming up and would it be possible within the law to appeal to an upper tribunal if they decline my request again?
Please Log in or Create an account to join the conversation.
- foss27
9 years 4 months ago #147684 by foss27
Replied by foss27 on topic Physical pain
Hi
The CAB advisor was wrong.
You can deteriorate and make a new claim and take it all the way if there is an error in law.
I can understand your bitterness. Some of these people are not fit to be advising clients.
Further to the comments about pain there is a reliability test applied to all the descriptors that you must be able to do them repeatedly, safely and without pain, discomfort etc. So if you could walk 50 metres for example but it caused you severe pain, discomfort such that you would have to lie down and couldn't do it again that day, or you stopped after 10 metres and took a break then you cannot be assessed as able to walk 50 metres.
So it follows that this applies to you touching your forehead or picking up a cup or whatever.
I can touch my forehead but it causes me severe pain at the top of my arm where it connects to my body due to nerves catching in my rotator cuff or some such medical term. The pain is excrutiating and if I do it once I am in such pain I cannot do it again. So I would not be scored as able to touch my forehead. Obviously it is better to just refuse rather than be subjected to the pain.
I wonder what you are calling the medical board? Do you mean the Work Capability Assessment or are you talking about the appeal panel? If anyone ever says that again about pain and discomfort refer them to the law and insist on having it in writing or recorded by the court as it is untrue and illegal. Even better if you take a witness,
The CAB advisor was wrong.
You can deteriorate and make a new claim and take it all the way if there is an error in law.
I can understand your bitterness. Some of these people are not fit to be advising clients.
Further to the comments about pain there is a reliability test applied to all the descriptors that you must be able to do them repeatedly, safely and without pain, discomfort etc. So if you could walk 50 metres for example but it caused you severe pain, discomfort such that you would have to lie down and couldn't do it again that day, or you stopped after 10 metres and took a break then you cannot be assessed as able to walk 50 metres.
So it follows that this applies to you touching your forehead or picking up a cup or whatever.
I can touch my forehead but it causes me severe pain at the top of my arm where it connects to my body due to nerves catching in my rotator cuff or some such medical term. The pain is excrutiating and if I do it once I am in such pain I cannot do it again. So I would not be scored as able to touch my forehead. Obviously it is better to just refuse rather than be subjected to the pain.
I wonder what you are calling the medical board? Do you mean the Work Capability Assessment or are you talking about the appeal panel? If anyone ever says that again about pain and discomfort refer them to the law and insist on having it in writing or recorded by the court as it is untrue and illegal. Even better if you take a witness,
Please Log in or Create an account to join the conversation.
Moderators: Gordon, latetrain, BIS, Catherine, Wendy, Kelly, greekqueen, peter, Katherine, Super User, Chris, David