ESA Tribunal

My appeal failed and the decision of Atos was upheld. One member of the panel was a (retired) orthopaedic surgeon and he blew me out of the water with all of my spinal, hand and arm complaints. His dislike of fat people was quite obvious at the hearing and even more so with the tone of his report!! However, I am made of strong stuff and can ignore that!! The point I would like to bring up is the recommendation for the use of a self propelled wheelchair. The Atos person recomended this in her report to DWP, however This was not mentioned during the hearing and yet his recommendation is that I can use one. No questions were asked as to whether or not I could use this chair. Such chair, if it were prescribed by another professional, would be in the region of 32 inches wide in order to accomodate me and the weight of the chair would be around 25kg. The chair would not fit through a door without me having to get out of it, fold it up, push it through the door and unfold it and get back in again. It would cause considerable difficulty actually getting it in and out of the house because of its size and for me to lift it in and out of a car would be impossible. Is this grounds for an appeal to the Upper Tribunal?

Gordon wrote: Spinninglizzy

The first thing you should do is request a written Statement of Reasons as you cannot proceed to an appeal without doing this.

Tribunals – Requesting a Statement of Reasons

You will then need to show that there has been an Error of Law

What is an Error of Law?

There will be two elements that you need to consider, did the Tribunal agree that you could not walk 50m or could not do so repeatedly. If they did not, then unless you can find an Error of Law related to this, then there may be no realistic opportunity to win a new appeal, as you would still fail the test due to this, although, this does not prevent you continuing.

Secondly you need to show that there was an Error of Law in regard the use of a wheelchair, I will try and find the Case Law that relates to this, but you need to be aware that the Error was in a previous Tribunal not asking questions about the ability of the claimant to use a wheelchair, not that they could not do so, also this case was sent back to the Lower tier for a new hearing to be held, we do not know what the result of this was.

Gordon

Hi G,

Is the case law that you are referring to here ? :

www.benefitsandwork.co.uk/forum?view=top...id=10&id=87202#87202

It must be deemed as "reasonable" for the appellant to use a manual wheelchair.

This information may also be of further help to the OP :

Appealing to The Upper Tier, DR UK Factsheet

bro58