ESA appeal question - sitting issue...

Hi CP,

Unfortunately, you will not be the first person to be denied ESA due to assumptions being made from the fact that the claimant has managed to travel abroad, and any actions/activities involved in doing so.

There is some case law on this which basically advises that just because a claimant can manage to travel abroad once a year, they should not then be necessarily classed as being able to carry out any activities involved in the travel, for the majority of the time.

The repeatedly, reliably and safely aspect should also be taken into account.

"25. Tribunals should be wary of becoming fixated on the fact that an appellant may have undertaken a long-haul flight to some exotic holiday destination. The reality, unsurprisingly, is that most social security claimants are not frequent flyers. For some people, if they do fly, it is for a holiday of a lifetime or because of some pressing family business. Given that the assessment of the effects of a person’s condition for the purposes of both DLA and ESA is meant to be looked at in the round, it may be more helpful for tribunals to focus rather more on (for example) the sort of walking that claimants do in a typical week, rather than on an infrequent and quite probably exceptional foray through a major domestic airport."

Although this case deals with the Pre 28.3.11. WCA activity 1: walking, as it was then, before the "Virtual Wheelchair" was brought into play, it may be applicable to other activities.

Here is a copy of the UT Ruling :

CE 3002 2010

To be clear, I am not suggesting that you rely on this alone, but it may be another string to your bow.

bro58

Dear moderators

Thank you for your suggestions, and sorry to take up more of your valuable time, but please could you try to answer 2 questions for me about lodging an appeal?

1. About the "sit/stand" descriptor - the form I filled in just involves "staying in one place without help from another person", but the guidelines from this site seem to discuss that with respect to a work station (both your own guide and the Med Services guide you have available)?

This is an important distinction for me, because I can sit on the floor in my optimised position (to avoid triggering my neck) for half an hour looking at something raised on my lap table to be directly in front of my eyes, but I cannot get myself into this position using any form of even adapted seating I have found to be at a normal desk, and while standing I cannot hold my neck at the angle required for me to maintain looking at something on a raised surface, not even a sloping one. (I am typing this on my iPad while lying on my side.) I do not believe that my having to sit on the floor is ever going to be seen as acceptable by a real employer.

2. The second is a bit more fundamental. In lodging my right to appeal, can I only quote that I disagree with what they are saying about me with respect to a particular descriptor? Or can I also disagree with the overall assumptions they seem to be using?

I am asking the latter due to noticing the following words while trying to check the Med Services guidelines about Variable Conditions:

"For example, the medical certification says the claimant has mechanical back pain, and on examination you find no back abnormality.
The claimant says that on one day a week his back is so bad that he has to stay in bed. This degree of variability is very unlikely; mechanical back pain does not normally vary to this extent."

I am now wondering if this type of assumption explains why the DM has sent me such a ridiculous letter, where he states everything I can at times do (due to my excessive honesty in such matters), with no mention of any problems I have at all, simply constantly stating "Clinical examination" (showing my now good movement and muscle strength) as the reason they say I should be able to do all things with no problems, and stating that in his opinion "some continuing discomfort" if my neck is held in certain positions is all I will be suffering from.

SORRY, DRUGGED BRAIN STARTING TO WANDER AGAIN, ONLY READ IF YOU HAVE TIME:

I know that chronic pain syndromes are not that well understood still, and are a condition that many of us are left to feel embarrassed to admit to, but there is now clear scientific evidence showing the development of different pathways within the brain in someone suffering from these syndromes, and thus an acceptance among the medical profession that they do in fact exist.

In accepting Fibromyalgia as existing (another chronic pain syndrome, with no apparent initial injury causing it), surely the DWP must also be accepting the existence of other types of chronic pain syndromes (in my case after an unsuccessful spinal surgery)?

If this is so, then I didn't realise that my fight to get back and keep my neck and limb mobility and muscle strength means I am no longer allowed to be believed to have more widespread pain issues by the DWP.

Sadly my neck/brain never signed up for this "now the pain should have ended" deal, and widespread nerve pain in my upper back and all 4 limbs is still a regular and unpredictable occurrence for me despite my much improved mobility. It is easily triggered (eg particularly by neck movements/positions) and it still has me regularly stuck in bed for 2-3 days at a time... But yes, as soon as my pain levels drop enough again I will deliberately force myself out of bed to do something active like swimming, because physical exercise is recognised as one of the best things I can do to chemically combat the useless pain signals that my brain is sending me.

The more I find out about ESA, the less likely I feel it is we will win an appeal even for the WRAG group. I am starting to think you need to be pretty much bedridden for that, and suspect I was optimistic to think that genuine work related scenarios or repeatable timescales are being considered, or that those who are not expected to improve further would be considered for the Support Group.

I think it is, however, worth lodging an appeal, if only for me to feel that I can go on record with the reasons why I completely disagree with the DM's statements. As stress is not good for Chronic Pain, however, I am wondering whether to not go as far as my having to sit on the floor/lie down in front of a face to face tribunal. We don't have that much to gain financially in doing so anyway, as my husband works and we would only get one year of WRAG payments.

I had thought the WRAG group would at least keep me eligible for ESA in case my condition ever worsened, but hearing about the possibility of regular 3 to 6 month reassessments (and the idea of having to sit on the floor for Work Focused Interviews) just makes me think that is too much stress to go through just to maintain LCW status and get NI contributions...

Thanks Gordon.

I will be getting help to lodge an appeal this week from a friend who volunteers working with ESA appeals at our local CAB.

Looking at the online GL24 form though, I was wondering if you knew if it would be acceptable for me to change my title from that used on my ESA50, or if you thought that would just confuse them?

It may sound petty, but I usually just use Mrs, as I think people relate better to that, but if I do decide to actually face a tribunal in person then I'm thinking I would feel less inferior if the DWP representative had to use my official old PhD title of Dr (particularly if they are potentially going to be sneering down their noses at me while I lie on the floor...) Just a thought...

Dear moderators

Thank you for all your assistance so far, I suspect I will have more questions during the prolonged appeal process, but will try to keep them short.
(Our local CAB were only able to give me their short printout on the appeals process, and to tell me to make an appointment once I have all the information I want to submit ready. Apparently they do have someone able to check through it all before I submit it.)

So, my GL24 has now been posted, along with a written request (quoting the Data Protection Act) for evidence used by the DWP to make their decision.

I know I probably have ages to get things together, but want to at least start thinking about what to gather...

Sorry, but I already have further questions:

1. When obtaining Statements from friends / relatives, is there a particular format they should use? i.e. What needs to be included?eg name/address/relationship to you/occupation? Does there need to be a signed ending statement down the lines of "I declare that the information I have given is correct as far as I know and believe"?
And should they preferably be handwritten or typed?

2. I'm sure I've read somewhere (but I cant find where now) that the DWP do not allow mental (cognitive/ awareness of danger) problems due to side effects of medication taken for physical problems to be even considered, but that this could possibly be argued with at tribunal level? If you can confirm if this is indeed the case, then it has been pointed out to me that I really should argue this point, and do you have any suggestions how or on what basis? Is this arguing a point of interpretation of law (in which case what exactly does the "law" say?) Can I even argue that what I was like both physically and mentally before the drug was taken should be taken into consideration if they wish me to stop taking this drug to improve my cognitive function?

3. I wish to argue that repeatability of some physical descriptors needs to be considered with relevance to a realistic workplace scenario - eg, for me, sometimes cautiously being able to lift my arms above my head once or even twice does not equate to me being able to look up and see what I am doing at the same time for safety, or to me being able to repeat it enough to perhaps stack a shelf in a shop, without severe pain resulting. (And if they decide I shouldn't sit on the floor / lie down to work in an office workplace scenario, then is it reasonable for me to suggest different alternative possible workplace scenarios and why I could not realistically achieve minimal work in them?) Do you know if I can do this? Has anyone else tried to do this? Do you have any tips or suggestions?