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TOPIC: Activity 15 and "mental disablement"

Activity 15 and "mental disablement" 8 years 7 months ago #28238

  • RichieRich
In Activity 15, Execution of tasks, Option B states

Takes more than twice the length of time it would take a person without any form of mental disablement to successfully complete any everyday task with which the claimant is familiar

I'm wondering if there is any definition of mental disablement? The reason I ask is that my partner has been extremely ill with persistent, debilitating headaches. She applied for ESA, was refused and is now appealling, and I'm wondering if debilitating headaches are classified as a mental or physical disablement. If the latter, then, as far as my partner and I can see, she fails to score 15 points on the limited capability for work assessment and will have to rely at her appeal on Regulation 29.

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Re:Activity 15 and 8 years 7 months ago #28244

RichieRich wrote:

In Activity 15, Execution of tasks, Option B states

Takes more than twice the length of time it would take a person without any form of mental disablement to successfully complete any everyday task with which the claimant is familiar

I'm wondering if there is any definition of mental disablement? The reason I ask is that my partner has been extremely ill with persistent, debilitating headaches. She applied for ESA, was refused and is now appealling, and I'm wondering if debilitating headaches are classified as a mental or physical disablement. If the latter, then, as far as my partner and I can see, she fails to score 15 points on the limited capability for work assessment and will have to rely at her appeal on Regulation 29.


In all probabilities, persistent debilitating headaches will be classed as a physical disablement.

If your partner has any other illnesses/disabilities she may satisfy some other descriptors, but upon reading the ESA descriptors, it will be difficult to satisfy any one of the basis of debilitating headaches alone? The exception could be if the headaches are the result of some pre-existing mental/physical medical condition that is responsible for the headaches.

If it is found that none of the descriptors will apply (I am unaware if she received any points at the WCA resulting in the appeal), then it is always possible to rely on Regulation 29, although the appeal tribunal may enquire why if it wasn't put at issue at the WCA, if the exceptional circumstances are only being raised before the tribunal now?

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Re:Activity 15 and 8 years 7 months ago #28266

  • RichieRich
Crazydiamond

Many thanks for your thoughts. You've (regrettably!) confirmed my suspicions that headaches would likely be classed as a physical disablement.

I think the simple answer as to why my partner didn't raise the issue of exceptional circumstances at the WCA is that, at that time, both she and I were pretty green wrt the details of ESA. Certainly, neither of us had the foggiest that there was such a thing as Regulation 29.

It was only after she was awarded zero points that I started looking around on the web and came across Benefits and Work!

I'd be most interested to hear your thoughts on whether a tribunal can reasonably expect that someone who's very ill and struggling to function should be au fait with Regulation 29 at the time of their WCA? There's certainly no explicit memention of exceptional circumstance/Regulation 29 in the Limited capability for work questionnaire.

Thanks again for your thoughts.

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Re:Activity 15 and 8 years 7 months ago #28293

There is absolutely nothing preventing Reg 29 being raised at an issue for the first time before the appeal tribunal, precisely for the reasons stated in your post. In fact, it would constitute an error of law if it wasn't taken into consideration.

The point I was really making was to be aware of the fact that if the tribunal contend that Reg 29 cannot be raised as an issue before them, that would be incorrect as I have before me Commissioner's Decision CSIB/223/05 (although it refers to IB Reg 27 which will be superseded by ESA Reg 29) and this deals with the tribunal's obligations to take into account any exceptional circumstances raised by a claimant/appellant.

Unfortunately the Commissioners Decision is too protracted to reproduce in this forum, but it may well be available on the internet for reference if necessary.

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Last edit: by Crazydiamond. Reason: Spelling correction.

Re:Activity 15 and 8 years 7 months ago #28299

  • RichieRich
CD

That's really helpful. I'm sure the decision is available online and I'll dig it out.

Thanks again

Richard

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Re:Activity 15 and 8 years 7 months ago #28302

Managed to locate Commissioners Decision CSIB/223/05 which is available HERE.

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