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ESA Appeal notes - Disregarding the guidelines?
- davbam
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11 years 3 months ago - 11 years 3 months ago #97098 by davbam
ESA Appeal notes - Disregarding the guidelines? was created by davbam
Hi,
My wife is appealing against the decision not to place her in the ESA support group despite having been in receipt of IB and the highest level of DLA care component for over 13 years and not being asked to attend any kind of medical. We have just seen the appeal paperwork from the DWP, which is just unbelievable.
It suggests that the decision was made as the result of a medical report, which was prepared by a registered nurse who has never seen my wife. She suggests that my wife can self propel her own wheelchair, which she clearly cannot, and that and I quote
“It is accepted that the claimant experiences pain and discomfort it must be remembered that activities do not have to be performed without any discomfort or pain”
The wording of the activity of walking clearly states that you cannot either “mobilising more than 50 meters without stopping in order to avoid significant discomfort or exhaustion”
My wife cannot move more than a few meters without pain and has to be helped to do so with an elbow crutch and me as her carer for short distances in the home and using a wheelchair that I have to push when outside, but also sometime inside. She cannot get in and out of the wheelchair without my help or change seats or use the toilet without assistance, as her spine goes into spasm due to nerve damage following an operation on her spine.
So we are appealing on these grounds, but I am amazed that a nurse that has never seen my wife can give this opinion, despite medical evidence to the contrary, which we supplied and ignore the pain and discomfort issue, despite it being part of the activity section of the review.
Has anyone had a similar situation and are we approaching this is in the correct way.
My wife is appealing against the decision not to place her in the ESA support group despite having been in receipt of IB and the highest level of DLA care component for over 13 years and not being asked to attend any kind of medical. We have just seen the appeal paperwork from the DWP, which is just unbelievable.
It suggests that the decision was made as the result of a medical report, which was prepared by a registered nurse who has never seen my wife. She suggests that my wife can self propel her own wheelchair, which she clearly cannot, and that and I quote
“It is accepted that the claimant experiences pain and discomfort it must be remembered that activities do not have to be performed without any discomfort or pain”
The wording of the activity of walking clearly states that you cannot either “mobilising more than 50 meters without stopping in order to avoid significant discomfort or exhaustion”
My wife cannot move more than a few meters without pain and has to be helped to do so with an elbow crutch and me as her carer for short distances in the home and using a wheelchair that I have to push when outside, but also sometime inside. She cannot get in and out of the wheelchair without my help or change seats or use the toilet without assistance, as her spine goes into spasm due to nerve damage following an operation on her spine.
So we are appealing on these grounds, but I am amazed that a nurse that has never seen my wife can give this opinion, despite medical evidence to the contrary, which we supplied and ignore the pain and discomfort issue, despite it being part of the activity section of the review.
Has anyone had a similar situation and are we approaching this is in the correct way.
Last edit: 11 years 3 months ago by Gordon.
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- Gordon
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11 years 3 months ago - 11 years 3 months ago #97106 by Gordon
I assume you are appealing to be placed in the Support Group from the WRAG.
First to clarify some of the procedures, if ATOS believe that there is sufficient information already available to them on the ESA50 and any supporting documentation, they can make a recommendation on the claim without the requirement for a face to face assessment. If you have not already done so, you can request a copy of this report (ESA85A) from the DWP.
Again, I just want to clarify, the test is not soley a review of your wife's ability to walk, the test is about her mobilising which also includes her ability to propel a manual wheelchair. To be placed in the SUpport Group for ths descriptor you need to show that she can neither walk nor propel a wheelchair more than 50m.
Further, the legal test includes the phrase "significant discomfort or exhaustion", so it is not enough to say that your wife experiences discomfort or pain when mobilising, it must be significant discomfort. Unfortunately, there is no legal definition of what constitutes significant discomfort , Case Law indicates that it is less than significant pain and of course, it must be associated with the act of mobilising.
The use of a wheelchair must be reasonable, so if you can show that this is not the case, then usage should be excluded from the test. This may be because your wife could not propel a wheelchair, the usage is not practical; you live in a flat with no lift, medical advice recommends that she does not use a wheelchair, etc.
Our ESA Appeal and claim guides are available on the following link
www.benefitsandwork.co.uk/help-for-claimants/esa
You should also review the following FAQs for more information
Is there any risk to challenging a decision?
How long do I have to appeal?
How to submit an appeal
ESA medical – what forms to ask for?
Qualifying for the Support Group
Disability Rights UK Factsheet - Appeals and reconsiderations
12 Month Limit for ESA(CB)
Do I have to attend WFIs while I appeal?
If you have further questions, please reply to this topic when the forum re-opens this eveing.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic ESA Appeal notes - Disregarding the guidelines?
boo wrote: Hi,
My wife is appealing against the decision not to place her in the ESA support group despite having been in receipt of IB and the highest level of DLA care component for over 13 years and not being asked to attend any kind of medical. We have just seen the appeal paperwork from the DWP, which is just unbelievable.
It suggests that the decision was made as the result of a medical report, which was prepared by a registered nurse who has never seen my wife. She suggests that my wife can self propel her own wheelchair, which she clearly cannot, and that and I quote
“It is accepted that the claimant experiences pain and discomfort it must be remembered that activities do not have to be performed without any discomfort or pain”
The wording of the activity of walking clearly states that you cannot either “mobilising more than 50 meters without stopping in order to avoid significant discomfort or exhaustion”
My wife cannot move more than a few meters without pain and has to be helped to do so with an elbow crutch and me as her carer for short distances in the home and using a wheelchair that I have to push when outside, but also sometime inside. She cannot get in and out of the wheelchair without my help or change seats or use the toilet without assistance, as her spine goes into spasm due to nerve damage following an operation on her spine.
So we are appealing on these grounds, but I am amazed that a nurse that has never seen my wife can give this opinion, despite medical evidence to the contrary, which we supplied and ignore the pain and discomfort issue, despite it being part of the activity section of the review.
Has anyone had a similar situation and are we approaching this is in the correct way.
I assume you are appealing to be placed in the Support Group from the WRAG.
First to clarify some of the procedures, if ATOS believe that there is sufficient information already available to them on the ESA50 and any supporting documentation, they can make a recommendation on the claim without the requirement for a face to face assessment. If you have not already done so, you can request a copy of this report (ESA85A) from the DWP.
Again, I just want to clarify, the test is not soley a review of your wife's ability to walk, the test is about her mobilising which also includes her ability to propel a manual wheelchair. To be placed in the SUpport Group for ths descriptor you need to show that she can neither walk nor propel a wheelchair more than 50m.
Further, the legal test includes the phrase "significant discomfort or exhaustion", so it is not enough to say that your wife experiences discomfort or pain when mobilising, it must be significant discomfort. Unfortunately, there is no legal definition of what constitutes significant discomfort , Case Law indicates that it is less than significant pain and of course, it must be associated with the act of mobilising.
The use of a wheelchair must be reasonable, so if you can show that this is not the case, then usage should be excluded from the test. This may be because your wife could not propel a wheelchair, the usage is not practical; you live in a flat with no lift, medical advice recommends that she does not use a wheelchair, etc.
Our ESA Appeal and claim guides are available on the following link
www.benefitsandwork.co.uk/help-for-claimants/esa
You should also review the following FAQs for more information
Is there any risk to challenging a decision?
How long do I have to appeal?
How to submit an appeal
ESA medical – what forms to ask for?
Qualifying for the Support Group
Disability Rights UK Factsheet - Appeals and reconsiderations
12 Month Limit for ESA(CB)
Do I have to attend WFIs while I appeal?
If you have further questions, please reply to this topic when the forum re-opens this eveing.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Last edit: 11 years 3 months ago by Gordon.
The following user(s) said Thank You: Jim Allison BSc, Inst LE, MBIM; MA (Consumer Protection & Social Welfare Law)
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- bro58
11 years 3 months ago - 11 years 3 months ago #97108 by bro58
Replied by bro58 on topic ESA Appeal notes - Disregarding the guidelines?
Hi b,
As an add-on to Gordon's excellent advice, there is information on use of aids and appliances with reference to ESA, here : www.benefitsandwork.co.uk/forum?view=top...id=10&id=87202#87202
This includes the case law, on whether it would be "REASONABLE" or not.
Please note also, that to be considered as being able to carry out any of the ESA activities, the claimant must be able to carry it out for the "MAJORITY" of the time.
See this extract : " ESA Reg 34. (2) :
“A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor”
From the ESA Regs, here : www.legislation.gov.uk/uksi/2008/794/regulation/34/made
bro58
As an add-on to Gordon's excellent advice, there is information on use of aids and appliances with reference to ESA, here : www.benefitsandwork.co.uk/forum?view=top...id=10&id=87202#87202
This includes the case law, on whether it would be "REASONABLE" or not.
Please note also, that to be considered as being able to carry out any of the ESA activities, the claimant must be able to carry it out for the "MAJORITY" of the time.
See this extract : " ESA Reg 34. (2) :
“A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor”
From the ESA Regs, here : www.legislation.gov.uk/uksi/2008/794/regulation/34/made
bro58
Last edit: 11 years 3 months ago by bro58.
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- davbam
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11 years 3 months ago #97112 by davbam
Replied by davbam on topic ESA Appeal notes - Disregarding the guidelines?
Thanks Gordon and Bro58 for your replies.
My wife cannot mobilise by herself in a wheelchair, as self propelling the wheelchair would make her back go into spasm, which is extremely painful and debilitating and will usually result in nausea, as any spasms would in turn affect her neck, where she has deteriorating discs due to facet joint disease. She also cannot walk more than a few meters using an elbow crutch with my help, as any movement causes significant pain and muscle fatigue in her legs, due to the damage caused to the nerves following spinal decompression in 1998 and she has on many occasions fallen over. So she is totally reliant on me, as her carer to get around and bathe and dress etc. I think she clearly fulfills the descriptor regarding mobilising under schedule 3, but the problem is we need to prove that at the tribunal.
I will go and see our GP to see if he can help. The problem is that he would not comment on the form the DWP sent him, as he has never seen my wife, as we only moved here 18 months ago and we only get the prescribed medication from the GP (of which there is a lot) as there is nothing that they can do for her condition and she rarely leaves the house as it causes too much pain to do so. Catch 22 really!
My wife cannot mobilise by herself in a wheelchair, as self propelling the wheelchair would make her back go into spasm, which is extremely painful and debilitating and will usually result in nausea, as any spasms would in turn affect her neck, where she has deteriorating discs due to facet joint disease. She also cannot walk more than a few meters using an elbow crutch with my help, as any movement causes significant pain and muscle fatigue in her legs, due to the damage caused to the nerves following spinal decompression in 1998 and she has on many occasions fallen over. So she is totally reliant on me, as her carer to get around and bathe and dress etc. I think she clearly fulfills the descriptor regarding mobilising under schedule 3, but the problem is we need to prove that at the tribunal.
I will go and see our GP to see if he can help. The problem is that he would not comment on the form the DWP sent him, as he has never seen my wife, as we only moved here 18 months ago and we only get the prescribed medication from the GP (of which there is a lot) as there is nothing that they can do for her condition and she rarely leaves the house as it causes too much pain to do so. Catch 22 really!
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- Gordon
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11 years 3 months ago #97120 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic ESA Appeal notes - Disregarding the guidelines?
boo
I notice that you joined after returning your ESA50, so my best advice is to go over the ESA Claim guides in the Members area, as if you were writing your ESA50 from scratch, hopefully this will give your a fresh view of your wife's claim, and may hi-light areas where the original form was weak or did not do a good job of explaining her limitations in the context of the ESA descriptors.
Good luck
Gordon
I notice that you joined after returning your ESA50, so my best advice is to go over the ESA Claim guides in the Members area, as if you were writing your ESA50 from scratch, hopefully this will give your a fresh view of your wife's claim, and may hi-light areas where the original form was weak or did not do a good job of explaining her limitations in the context of the ESA descriptors.
Good luck
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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- slugsta
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11 years 3 months ago #97127 by slugsta
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Replied by slugsta on topic ESA Appeal notes - Disregarding the guidelines?
I sucessfully appealed against the decision to place me in the WRAG. I used the grounds that I could not walk without significant discomfort and could not use a wheelchair as sitting is even more painful. The only evidence I provided were letters from my husband and 2 friends (who both have medical/caring backgrounds). The decision was overturned on reconsideration - so it is possible, even without medical support.
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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