ESA mandatory reconsideration failed

Hi, I hope that someone can help me.

I suffer from fibromyalgia and as a result have chronic pain, fatigue and cognitive problems.

I have been placed into the Work related activity group but I feel that I should be in the Support group qualifying under the exceptional circumstances rule as activities cause my conditionand pain to worsen.
I spend most of the day lying down as this is the least painful position for me.

I cannot sit for longer than 5-10 mins and the same for walking, I can push through the pain and sit/stand/walk for upto 30 mins but I would then be in unbearable pain and needing to take a long rest lying down and possibly cause a flare up.
I've been honest with telling them that I can push through the pain and then do the activity for upto 30 minutes but suffer as a result but they have taken this as an admission that this is what I can do.

They have told be that I am able to do work related activities even though my doctor has written to them saying that I am unable to do it.

I received a letter today stating that I am not eligible for the support group and that work related activities can be demanding or less demanding depending on your health circumstances. They said that work related activies can be done over the phone.

If work related activies can be done over the phone then surely that would mean that everyone can do them whether they are in pain, limbs missing, blind or mentally affected.
I think its wrong and I wondered if you could advise me and if I should go to appeal.

Many thanks

Smileybob
(now going for a lie down as I am in agony and extremely upset )

Hi Smileybob (although not so smiley just now I expect )

I am sorry that the Mandatory Reconsideration did not go in your favour - but not surprised as it rarely does more than 'rubber stamp' the original decision.

The burden of proof for the 'exceptional circumstances' descriptor is high and, as you say, it is difficult to argue that a short telephone interview would be harmful.

Gordon dealt with this for another poster recently, this is what he said

"Break the Regulation down into it's core parts and explain why and how you meet them.

- So you need to specifically identify the condition that would cause the risk of harm to you or another.

- The risk must be substantial so you need to explain how this is the case for you.

- you need to explain the risk and how it manifest itself

- for Reg 29. you need to explain how this risk is relevant to the your working, this would include our travelling to and from any work.

- Reg 35 you need to explain how the harm relates to Work Related Activity such as your attending Work Focussed Interview or your attending training, or writing a CV as examples.

For Reg 29 you also need to explain why the risk is mitigated by any prescribed medicine or reasonable adjustments that an employer might make."

I suggest you work through this and see how strong a case you can make - that should help you decide whether to take this further. You have 1 month from the date of the MR letter in which to submit your appeal to the Tribunal Service.

As always, you might wish to bookmark/favourite this on your web browser now so that you can find it easily in future. It helps us enormously if everything relating to the same claim is kept in one place - and I hope you will find it useful too

I decided to be proactive and instead of waiting for the benefits system to make arrangements for me to see a Work coach (the person in charge of work related activities) I decided to get myself an appointment.
The nice lady who saw me said that due to my condition she would not be expecting me to do any activities and instead said that she would give me a call every six months to see how I am getting on, If I'm any better and if anything has changed for me. She also said that she would do this over the phone as she understood it wold be painful for me to attend interviews. After talking to her for a while she did advise me that I could always appeal to the courts if I thought I was in the wrong group.
I think its wrong that I have been put into the WRAG group yet I am not expected to do any WRAG activities because of my condition, surely that is what the Support group is for?

With the above in mind, could you please advise me on how I should write an appeal and what information I should include.

I am grateful for all your help

Smileybob