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TOPIC: Do I have any rights under the DDA??!

Do I have any rights under the DDA??! 8 years 10 months ago #37157

  • M.E Sufferrer
I had my appeal on 12/11/10. After my medical, I was only awarded 6 points for things taking me time and half longer than an able bodied person. At my appeal I was awarded a further 6 for trouble with walking.

I also stated that I could not stand for 30 minutes and that I could not squat or kneel at all. I have requested a statement of reasons, but until I receive that, I have no idea why I haven't been awarded any points for these factors.

In the meantime, after seeing my GP and breaking down in tears, he has now signed me off with "Depressive Illness further complicating M.E." and have been advised to submit a new E.S.A application based on the fact that I now have an additional illness. (My original claim was based on M.E. alone)

My question is based on the fact that I have an independent medical report from a highly qualified specialist in M.E. which states that I have a disability and am unable to work due to the fluctuating symptoms of my illness. I have also been attending a specialist M.E. Clinic in Oxford for Graded Exercise Therapy.

Due to now having no income, as my E.S.A has been stopped, I felt I had to consider the possibility of signing on for JSA. I was told that to receive it, I would have to be prepared to work a minimum of 17 hours a week. I emailed the nurse who has been treating me at the clinic to ask her if she felt this would be possible. The following is her reply:
Has your GP referred you back to counselling for your depression? If not I think that would be beneficial for you, you could access this more locally. Your GP is right in saying that depression will be making your ME worse, also the considerable stress you have been under in recent months will also be making it worse.

Regarding work, you would have to ease back into this in a phased way, going from 0 to 17 hours straight off would have an impact on your symptoms. However returning to some kind of work, either voluntary or part time would help your self esteem and give you a purpose.

My question is, medical opinion is that for me to be forced to do a minimum of 17hrs pw would very likely impact on my disability to the extent that I would be worse than I am already. Surely there is a case here for disability discrimination?

I'd be interested to hear any views on this.

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Re:Do I have any rights under the DDA??! 8 years 10 months ago #37175

M.E Sufferrer

My personal opinion is that you would struggle to prove a case under the disability discrimination laws. Your doctors and nurses are expressing opinions and I am sure it would be easy to find conflicting opinions that would undermine your case.

On a more practical note, you say that the depression you are now suffering from is a new illness, this should be sufficient for you to re-apply for ESA due to a significant deterioration in your condition.

I am also an ME/CFS sufferer. I scored no points at my medical and I am still awaiting my appeal to be heard, so I can sympathise with your frustrations.

There are many people on the forum who suffer from ME/CFS, who have successfully been awarded ESA, so it is possible.

Please read the ESA guides in the Members section, these explain the best ways to answer the questions on the ESA50 form.

Remember, as ME/CFS is a fluctuating illness you need to answer based on capabilities for the majority of the time, also your ability to repeat a test is important, if you can't or cannot within a reasonable timescale, then you should be considered as being unable to complete it at all.

Hope this helps

Gordon

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Nothing on this board constitutes legal advice - always consult a professional about specific problems

Re:Do I have any rights under the DDA??! 8 years 10 months ago #37185

  • M.E Sufferrer
Thanks for that Gordon.

Can you expand on how I answer the regarding the ability to repeat a test. As part of my graded exercise therapy, I go out everyday for approx an hour, walking my dog. Having said that, I walk for 20 mins at most (to park and back and the rest of the time I am sat down throwing the ball for him).

However, that is all I can do in the whole day! The rest of the time I am sat on the sofa unable to do anything other than my basic toilet needs. I made the mistake it seems in telling them about my daily walks and they didn't take any notice of the fact that I certainly couldn't repeat it again that day or that it is the only 'activity' I can do.

What is the best way for me to answer and get it across?

Thanks

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Re:Do I have any rights under the DDA??! 8 years 10 months ago #37201

M.E Sufferrer

I have to say that your walking example is maybe not the best one to use. :) That said it is important that you are honest when discussing your capabilities.

The test for Walking is based on the distance, not the time, with the following abreviated criteria.

- Cannot walk at all. 15 Points
- Cannot walk more than 50 metres . 15 points
- Cannot walk more than 100 metres. 9 points
- Cannot walk more than 200 metres. 6 points
- None of the above apply. 0 points

There is no specific definition of what "reasonable repeatability" is, however, the 20 minute rest you use in your example, probably is not, whereas a 3 hour rest, probably would be.

I apologise that this is not more specific but you need base your answers on your own capabilities, which of course I don't know.

Gordon

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Nothing on this board constitutes legal advice - always consult a professional about specific problems

Re:Do I have any rights under the DDA??! 8 years 10 months ago #37222

Hi ME Sufferer

I too have CFS/ME & depression, the latter condition not directly as result of the former. I was lucky to gain enough points to be placed in the WRAG on my first application for ESA in March 2010 thanks to the brilliant guides on this site.
Do also use the 'search forum' facility using CFS/ME & ME/CFS as there are lots of previous posts on claiming/appealing ESA &/or DLA from B &W members with this condition.
Good luck with your appeal.
maggie

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Re:Do I have any rights under the DDA??! 8 years 10 months ago #37363

Hi y'all.

I always think that cases like these cry out for consideration as coming under the Exceptional Circumstances Regulations. I have to confess that as an IS/IB recipient, I don't know chapter and verse of these in relation to ESA, but I am sure they must exist.

The one I always latch on to is Regulation 27(b) of SI 1995/311 as amended (basically, part of the Incapacity Benefit Regulations). This states:

"...he suffers from some specific disease or bodily or mental disablement, and by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work."

I'm not sure if I've got the precise wording correct, but that is certainly the gist of it.

The killer here for some people is the "specific disease or bodily or mental disablement" bit; this requires a formal diagnosis, so if anyone hasn't got that, this regulation could not apply.

If, however, you DO have a formal diagnosis - mine is Asperger's Syndrome - then you can make a case for coming under this regulation (or the ESA equivalents).

Given the formal diagnosis, you would have to show that being found capable of work has had or would have a serious and adverse impact on your own health or that of another person, and that the cause of that serious and adverse impact was related to your formally diagnosed condition.

It seems fairly obvious to me on a common-sense basis that a formal diagnosis of ME meets the first test, more particularly if this condition is receiving some kind of active therapy under the NHS or otherwise.

If a health professional has stated that being faced with the "cliff face" of the JSA regime would have a serious and adverse effect on your health - which it already has, in this case - it would seem to me to be pretty much an open-and-shut case.

Obviously, face-to-face advice from a Welfare Rights professional is always helpful, but I believe that it might be in order to draw their attention to the Exceptional Circumstances Regulations for ESA.

I think you have a good case. Go for it!

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