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Re:Is the onus of proof on the appeal tribunal requir 10 years 2 weeks ago #26325

  • staffielover
letitia wrote:

HI Derek, thanks for the reply i understand a little bit now what you were trying to explain to me , That i will have to wait for the SOR to see how she came to the conclusion that my conditions have improved as they are all deteriating conditions that dont improve ,
one more question derek if i may be so bold on the statement of reasons from the decision maker for the DWP she states in the letter that the EMP REPORT I can walk 200 meters before having to stop due to severe pain , but looking at the rules it says severe discomfort if this not mentioned in the SOR from the appeal tribunal is it also something i can use ,as she applied the wrong test ,any help appreciated I read the rules but have problems understanding them ,many thanks ,LETITIA


Sounds like another case of a DWP person who doesn`t know the criteria properly!
I`ve had ankylosing spondylitis since I was in my early 20`s.
Over the years i`ve got used to pain and my tolerance has got to the stage that what i call severe discomfort would be severe pain to someone not used to it.
if merely standing causes you severe discomfort(as it does me) then the distance you can walk before suffering severe discomfort is zero,the fact that anyone can walk 200metres even though severe discomfort is suffered from the first step should not mean that you shouldn`t get DLA mobility in my opinion.
Pete

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Re:Is the onus of proof on the appeal tribunal requir 10 years 2 weeks ago #26327

Hi Letitia

I’m not knowledgeable on DLA but I have had a look at the guide. The law makes a distinction between pain and discomfort even though they are not defined.

In my opinion, if ‘severe pain’ are the words that the EMP thought was most appropriate, the wrong test has been applied. If the SOR uses the same wording, that would be grounds for an appeal. If the SOR uses the words ‘severe discomfort’, it should adequately explain how the tribunal drew their conclusion. And it would not be satisfactory to rely on the EMP report that states ‘severe pain’.

However, I don’t think there is any point in guessing what the SOR will say or focusing on this issue as the SOR will probably be a lengthy statement and may well contain other errors of law or unsupported facts that you haven't even thought of, as mine did. My advice is that when you receive the SOR, before taking it to a welfare rights advisor, read it thoroughly in conjunction with your appeal papers and Jim’s list of errors of law, and note any potential errors of law so that you can bring it to their attention. Unfortunately, a welfare rights advisor was unable to spot an error of law in my SOR until I pointed it out to him!

Best wishes

Derek

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Re:Is the onus of proof on the appeal tribunal requir 10 years 2 weeks ago #26329

Hi Derek, Jim 1, Jim has done some really useful posts on this site Re: Pain/Discomfort, I cant remember or at present have time to look for them. If you were to be able to look through previous posts you should come across them. Sorry i cant be more helpful at present. Best Wishes

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Re:Is the onus of proof on the appeal tribunal requir 10 years 2 weeks ago #26335

Hi Jeff,

This link should explain things. HERE

The legislation always refers to 'severe discomfort', not 'severe pain', since it's possible to have severe discomfort and not have pain.

Best wishes.

Jim

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PLEASE READ THE SPOTLIGHTS AREA OF THE FORUM REGULARLY, OTHERWISE YOU MAY MISS OUT ON IMPORTANT INFORMATION. Nothing on this board constitutes legal advice - always consult a professional about specific problems

Re:Is the onus of proof on the appeal tribunal requir 10 years 2 weeks ago #26408

  • letitia
hi everyone ,thanks for your replies and very helpful information ,I contacted the Law Center this morning and the lovely man told me as soon as i receive the SOR to bring it to him straight away also ask me who was the legal member on the chair ?why would he need to know this

also had a further look at the EMP report and DM SOR as follows

EMP report states in the mobilty page in sections
Discomfort, pain breathlessness on walking
Back Pain/Dipponoei (her spelling not mine )checked with GP ,she spelt it wrong ,but it means breathlessness
Likely speed of walking(normal speed 90/meters/minute or 1 and a half meters/second
May be slowed, est 50-70meters/minute
Likely distance before onset of SEVERE DISCOMFORT

The DM states in her Statement of Reasons

Our Dr has said you can walk in a slower than normal pace but in his opinion you can walk in excess of 200 meters before having to stop due to SEVERE PAIN

so dont know what to make of it
did the DM use the wrong Test in her Decision,

again thanks for all your help God Bless you all for being so Kind to a doting pensioner Letitia

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