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TOPIC: Walking Descriptor for ESA50

Walking Descriptor for ESA50 8 years 10 months ago #42619

I have a client who failed the ESA medical. He is a roof fitter. He was off work due to degeneration of his knees in particular the right one. He underwent surgery, not successful, exhausted SSP and applied ESA, sent for medical and failed. He underwent a second operation and this recovery was better and is now at work. We are arguing that at the time of the ESA medical he could not walk - descriptor 1(d). He struggled to walk and was then out for two days due to overexertion. The JBC are arguing that as he could walk he does not score the points. Is anyone able to help on any case law. I had read that if you were out for a period after then this was a good as virtually unable to walk. I have only just received this late paperwork from the JBC and the hearing is on the 14th January. Can anyone help please

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Re:Walking Descriptor for ESA50 8 years 10 months ago #42637

If you are arguing descriptor 1(d) "Cannot walk more than 100 metres on level ground without repeatedly stopping or severe discomfort" in isolation, this will only attract a score of 9 points.

As a score of 15 points or more is required for your client to 'pass' the work capability assessment, unless this can be added to any other pertinent descriptors, he will fail the assessment and found capable of work as has already happened, if the case hinges entirely on this descriptor alone.

If this is the position, case law will not assist your client. Is his case being argued taking into account any other relevant descriptors?

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Nothing on this board constitutes legal advice - always consult a professional about specific problems
Last edit: by Crazydiamond. Reason: Spelling correction.

Re:Walking Descriptor for ESA50 8 years 10 months ago #42649

beverley

You could look at arguing "reasonable repeatability".

Volume 8 – Employment and Support Allowance
Chapter 42 - Limited Capability for Work and Limited Capability for Work-Related Activity
42175 The test of whether a claimant cannot perform an activity is not whether or not they are physically incapable of performing it. Matters such as pain, discomfort and repeatability are taken into account. A claimant is not capable of carrying out an activity if they can only do so with severe pain or, if having done it once, they are unable to repeat it for hours or days. The extent of a claimant’s ability to repeat the activity in a single stretch and of the intervals at which the claimant would be able to repeat the performance should be identified. A decision can then be made on whether the claimant can perform the relevant descriptor with reasonable regularity.

Hope this helps

Gordon

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Re:Walking Descriptor for ESA50 8 years 10 months ago #42766

Thanks Gordon, that's really useful...I shall put it in his submission! Thanks again.

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Re:Walking Descriptor for ESA50 8 years 10 months ago #42767

Thanks for your help. The client already has 6 points for another descriptor, so that's why I was hoping to be able to come up with something to help with the walking issue.

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Re:Walking Descriptor for ESA50 8 years 10 months ago #42772

To find specific ESA caselaw which fits into the category to which you have referred is going to be difficult. Unfortunately, the various websites which carry ESA Upper Tribunal decisions, do not categorise these decisions.

I'm afraid looking for the UT decision(s) you require to assist your clients case will be looking for a needle in a haystack, but if you have the time and patience, you could trawl through the various UT decisions which in the case of ESA begin with the prefix CE, or CSE for Scottish cases, by following this link HERE.

The morass of the various UT decisions are listed in chronological order, and are at the bottom of each page of which there are many!

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Nothing on this board constitutes legal advice - always consult a professional about specific problems
Last edit: by Crazydiamond. Reason: Additional info.
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