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TOPIC: ESA Refused

ESA Refused 2 years 6 months ago #174908

Hi,

Today I received an ESA65 notifying me that my award of ESA is superseded and disallowed from 23/11/16. It mentions that the person tried to contact me by telephone on the 23rd but was unsuccessful. My smartphone has no record of calls on that day/missed calls. So instead of sending me a letter to contact them my award has been terminated.

It appears that they have used the face-to-face assesment to disregard my mobility and standing problems which might have gained me 15 points and 9 points respectively. In my ESA 50 I mentioned that I do not use a wheelchair. (I'm in a flat 4 floors up with no lift, 9 flights of stairs to the pavement).

The ESA65 says that I could obtain a wheelchair from the NHS and have it stored at a workplace.

What seems strange to me is that the basis of answering ESA50 questions is, "To answer Yes to any of the following questions, you must be able to do the activity safely, to an
acceptable standard, as often as you need to and in a reasonable length of time." So where's the consideration of travelling to a theoretical workplace without a wheelchair, surely this is still relevant? (I claimed under the 50 metre rule and standing rule).

Having never used a wheelchair and given that fact that I've received Ultrasound/Steroid injection for right arm Tendonis, and have recently developed suspected arthritis of the left thumb, GP prescribed Zacin and recommended thumb splint (which i'm now wearing) I doubt if I could use a manual chair anyway. I also doubt my upper body strength and arms are really upto it also.

0 Points across the board: Moving around: Our Assessment : You can move more than 200 metres on flat ground (moving could include walking, using crutches or using a wheelchair). My claim was stopping at under 50 meters with a walking stick/chair.

Standing and sitting: You can usually stay in one place for more than an hour without having to move away). No problem with sitting but I claimed under 'unable to stand more than 30mins'. I use my mobile seat after 5 to 10mins. (Effects of Asthma/Osteoarthritis, sudden loss of balance for both of the above). I also have Chronic Fatigue.

All in all I'm a bit surprised at 0 points and abrupt ending of my claim. Perhaps I'm missing something? I'm thinking of Mandatory Reconsideration leading if necessary to an appeal.

Your comments will be appreciated.

Thanks,

Larry

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ESA Refused 2 years 6 months ago #174974

Larry

A couple of points based on what you have written;

ESA is not a walking test, it is a Mobility test! In addition to your walking it considers your ability to self-propel a manual wheelchair over the same distances, you do not need to be using a wheelchair or even to own one for it to be considered. SO even if you can show your walking is restricted, unless you can also show that you cannot self-propel the wheelchair you will still not score points.

The Standing and Sitting test looks at your ability to sit and/or stand at a workstation, the "clock" only stops when you are forced to move away from the workstation due to significant discomfort or breathlessness. If you have no problems with sitting then you will not score points.

The first stage to challenging a Decision is for you to request a Mandatory Reconsideration, this needs to be done in writing to the DWP, within one month of the Decision, to the office that dealt with your claim, have a look at our ESA MR & Appeal guide for details of the process, the ESA area also has template letters that you can use to make the request with.

www.benefitsandwork.co.uk/help-for-claimants/esa1

You should contact the DWP for a copy of the assessment report (ESA85) if you have not already done so, I would phone them but again follow up the request in writing. Once you have the assessment report you will have a better understanding of how the DWP Decision Maker has come to their conclusions and will then be able to argue against them.

Your primary task is to show that you meet the criteria, there are many reasons you may have failed, you need to address each of these but don't get bogged down in criticising the assessment report unless you can clearly show that it is incorrect, it is a lot easier to argue the facts of the situation;

"the assessor recorded that I walked 50m, I did but they have failed to document that I had to stop every 10m for a rest due to breathlessness"

than their opinions

"based on my observations of the claimant walking I believe that they can reliably walk more than 200m.

When you have a better idea of the issues with your claim, come back to the forum and we will do our best to help.

Gordon

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Nothing on this board constitutes legal advice - always consult a professional about specific problems

ESA Refused 2 years 6 months ago #175107

Hi Gordon,

I sent in requests by Special Delivery for MR and ESA85 yesterday as well as speaking to ESA on the phone, after reading your reply, confirming this; he acknowledged the MR and indicated that he has sent the report.

Thank you for pointing out that Standing is not considered seperately from Sitting, hence the 0 points on that one.

So far it seems that it's 15 points for one descriptor or bust. (Moving around 50metres).

In the meantime I have a couple of details from my ESA65 that may be of interest:

"Mr. X indicated he had difficulty completing the above activities on his ESA50 questionnaire due to developing rapid beathing leading to exhaustion. He walks short steps., slowly. He is prone to sudden loss of balance. He uses a walking stick. he tries not to stand for more than 5-1-0 minutes. He experiences discomfort and pain in legs and feet."

"At the WCA Mr. X informed the HCP that in his typical day he walks to the shops 3 times a week which take him up to 25 minutes. He reports he stops after every 65 steps to rest for a few seconds and mobilises at a slow pace. He reports he occasionally will sit down on his chair stick when he feels tired. He reports he will sit and go on the internet looking up items for a couple of hours during the day or playing computer games."

(I don't remember saying a few seconds of rest - I rest as long as necessary. It takes approximately 25 mins walking to the supermarket I use. Indefinate amout of time shopping and approx. 25 mins back).

"The HCP observed Mr. X used one stick to walk 15 metres to the examination room. He was able to sit on a chair with a back for 53 minutes and rose twice from stting in an upright chair (which chair arms) without physical assistance from another person."

"The physical examination was normal. He mobilised independentaly to assessment room using a stick. Considering the evidence available the use of a mobility aid would be of benefit. Therefore, it is unlikely has any significant functional restriction with lower limb functional areas."

"The decision maker has determined that the evidence indicates that no points can be awarded for these activities."

On the issue of wheelchairs I found this:

www.rightsnet.org.uk/forums/viewthread/9049/

and with respect to general claimant difficulties in this sort of situation:

welfaretales.wordpress.com/2014/01/28/ch...them/comment-page-1/

Lots of comments below the main post.

Will post to more info. in due course

Larry

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ESA Refused 2 years 6 months ago #175132

Larry

Arguing that logistical problems prevent your using a wheelchair is going to be a struggle, although I think that that argument that the wheelchair can be stored at work is preposterous for obvious reasons, it has been stated in an Upper Tribunal Decision and whilst this is not binding on anybody assessing your claim they will need to provide reasons for ignoring the judgement.

I am assuming that you have no physical problems with using a manual wheelchair.

Gordon

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ESA Refused 2 years 6 months ago #175178

Gordon,

Please will you post references for the Upper Tribunal Decision as I may find this useful in my MR or appeal if necessary.

Is it possible that they can argue they are referring to a powered-wheelchair if I'm unable to use a manual one?

I have no personal experience of wheelchairs. I doubt if I can use a manual one in my present condition. My suspected left thumb artiritis was readily provoked by transferring load from my right arm tendonits, from which I'm recovering. I also have issues with persistent carpal tunnel in left thumb as well, having used a support nightly for nearly 3 years. I bought a new support which has the addition of a thumb splint which I wear approx 20hrs a day. I don't think I could self-propel in a state like this. Also I wonder what the effect of my asthma and chronic fatigue would be in conjunction with the strenous exertion that a manual wheelchair requires and whether this exertion would create more musculoskeletal problems in addition to the ones that already exist.

I have a slender chest and not very robust upper body with slim arms and thin wrists. I don't think I could self-propel a manual wheelchair even in full health. As to logistics I don't think I'm capable of safely carrying a heavy chair 9 flights up/down in my block of flats (no lift).

I have been referred to my local hospital MSK clinic regarding a bout of lower back pain and am awaiting an appointment. In general my health is not exactly getting better.

I have contacted my GP regarding the whole ESA matter, with full details.

Larry

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ESA Refused 2 years 6 months ago #175200

Larry

Have a look at the following, if you do a find for "wheelchair" you will find the relevant link.

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

Apart from the logistical problems of using a wheelchair their are two other routes to showing that you cannot use one;

First, if you have problems with your hands, arms or upper body and secondly if you have heart or respiratory issues.

I don't think that your having "I have a slender chest and not very robust upper body with slim arms and thin wrists" will be considered unless it is a direct result of your conditions.

Gordon

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Nothing on this board constitutes legal advice - always consult a professional about specific problems
Last edit: by Gordon.
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