Advice needed please re ESA Appeal process

Mrs Hurtyback wrote: Don't forget that the descriptor refers to 'mobilisation' not 'walking'. It may be that you have fallen foul of the 'imaginary wheelchair'.

Sorry should have said mobilising. ATOS confirmed I cannot use wheelchair.

del wrote:

Mrs Hurtyback wrote: Don't forget that the descriptor refers to 'mobilisation' not 'walking'. It may be that you have fallen foul of the 'imaginary wheelchair'.

Sorry should have said mobilising. ATOS confirmed I cannot use wheelchair.

Hi d,

Just because ATOS and the DWP DM have decided that you don't fulfill the qualifying criteria with respect to Activity 1 (Mobilising) of The :

SG (LCWRA)Schedule 3 Descriptors

It doesn't necessary follow that you don't, or that you have not already provided enough evidence that you should.

If that was the case, no one would gain a successful reconsidertion /appeal.

It can simply be down to poor ATOS assessment and/or decision making.

What you have to do is to reiterate your evidence, and see if you can spot any weaknesses in your evidence, and if there is, strengthen it.

As well as being able to carry out any of the activities Repeatedly, Reliably and Safely, you must also be able to carry them out for the "Majority" of the time, or with respect to The SG descriptors, for the majority of the times that you attempt them, as in 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”

www.legislation.gov.uk/uksi/2008/794/regulation/34/made

The majority of the time simply means more than 50% of the time as an average, so this could be more than 12 hours in any day, more than 3.5 days in any week or more than 6 months in any year, etc, etc.

You should also consider whether there would be any "substantial risk" to yourself or others if you were to carry out any of the activities, as at ESA Reg 35. 2. (a) & (b) :

ESA Reg 35 for entry to The SG (LCWRA)

It looks like they may have jumped on the fact that you have stated that you can sometimes manage 100m, you will have to show that for the majority of the time you cannot mobilise 50 metres.

You should also remember that the only distance that should be considered is the distance that you can mobilise before the onset of severe pain, discomfort, breathlessness, etc, etc.

Any distance mobilised after this should not be counted.

bro58

Checking ATOS/DWP paper work and just noticing that they have made reference to GP letter and state what GP has said. The wording that ATOS/DWP state is totally different to what gp has actually stated, there wording reads to me what they want it to read, if that makes sense!

GP is supportive, is it adviseable to show him how they have changed his wording or would that be seen to be leading GP if I asked if he could clarify exactly what he stated? Or, should I just leave it and let Tribunal sort it out?

Gordon wrote:

del wrote: Checking ATOS/DWP paper work and just noticing that they have made reference to GP letter and state what GP has said. The wording that ATOS/DWP state is totally different to what gp has actually stated, there wording reads to me what they want it to read, if that makes sense!

GP is supportive, is it adviseable to show him how they have changed his wording or would that be seen to be leading GP if I asked if he could clarify exactly what he stated? Or, should I just leave it and let Tribunal sort it out?

There is no harm in asking your GP to comment on what the ATOS assessor has written.

I suspect that this is a glass half full/empty situation, if you are looking to pass someone then you will use certain language, if you are looking to fail them then undoubtedly you will use something different.

Gordon

Thanks Gordon and brilliant explanation It amazes me how they are allowed to get away with saying that "GP states............. "then not using GP's actual wording. They are stating things that GP has not even said. Wish I could complete ESA50 like that

I believe because my condition varies constantly every day and it fluctuates and deteriorates which has a knock on effect on absolutely everything I try to do.

CAB said it would be better for me to only ask for reconsideration, if not successful then go to appeal, they felt it was the best way forward for me. I am currently in the process of submitting reasons for appeal.

Need a bit of advice as I believe I probably meet a few of the descriptors for Support Group because of the severity of one of my conditions which varies constantly every day as it fluctuates causing deterioration which affects absolutely everything I try to do. I also have several other conditions which affect me.

Rather than list every single individual descriptor is it okay to state that I think I meet more that one support descriptor because my health causes and limits me due to blah blah and also say I will provide further evidence of this when available and the usual bit about until I receive all papers there may be additional reasons for appeal? I really just want to get the GL24 lodged due to timescale and then work on the breakdown of descriptors.