DLA incapacity claim refused even in wheelchair

[Surfer01]

If you are on ESA and go for an ATOS medical and they pronounced fit for work although you have an incurable condition that affects your mobility, i.e rheumatoid arthritis, can you also lose your DLA payment?

[Simon7685]

I would question the legality of it but apparently it does seem that this has been done. There is at least one thread on here where it has happened.

 

DLA is not means tested and is available even if you are in employment, therefore to withdraw it on the grounds of being found fit for work would at first glance seem to be dodgy ground for the DWP but I expect they will find a way to justify it.

 

Has this happened to you Surfer01?

[Surfer01]

Not yet but I may have to go back on ESA or apply for IB in which case a medical will most certainly follow. I doubt if I will score zero as cannot walk properly and need elbow crutches or close my hands which makes getting dressed diffilcut but you never know with ATOS.

[paulb1310]

Medical evidence obtained in connection with one claim may be used in connection with another claim. However the evidence must be relevant. Clinical findings in an ESA medical may be relevant but references to what the person may or may not have said really are not. As an example, the ESA test of walking ability is not the same as the one for DLA. There are Commissioners Decisions (now Upper Tribunal) decisions about this and I can find them if anyone wants them.

[Surfer01]

Thanks. Seems I wrongly assumed that if pronounced fit for work by ATOS you would lose your DLA

[Simon7685]

Medical evidence obtained in connection with one claim may be used in connection with another claim. However the evidence must be relevant. Clinical findings in an ESA medical may be relevant but references to what the person may or may not have said really are not. As an example, the ESA test of walking ability is not the same as the one for DLA. There are Commissioners Decisions (now Upper Tribunal) decisions about this and I can find them if anyone wants them.

 

Paulb1310 do you work for the DWP by any chance, I was curious as you seem to have a good knowledge of the system?

 

To pick up on what you said at the start of your post, if medical evidence for one claim can be used in connection with another, how can that be the case with an ATOS medical? If I am correct with what I have read on here, the people who assess you at an ESA medical are not medically qualified but ask a series of questions following prompts from a computer program. If they are not medically qualified, how can any 'medical evidence' obtatained be used as such?

 

Maybe I am being a bit thick but it just doesn't seem to make any sense to me but it is obviously apparent that the information or evidence obtained at ESA assessments is being used to disallow people who are on DLA and that just does not seem right to me.

[RaeUK]

For me, the problem remains that ATOS 'medicals' are not medicals. My experience - and that of many, it would appear - is that ATOS are simply not equipped to come up with any clinical findings.

They can only follow the constraints of the DWP's work focussed assessment. And generally do so in a more clerical than clinical manner.

That different departments would seriously want to take onboard this flawed data is disturbing.

Best wishes.

Rae.

Edited March 9, 2010 by RaeUK
Any chance of a revolution?

[mazbck]

Well they say it wont affect it, but it did with my son who had an ESA 'medical' 2 months before his DLA was due to be renewed, he went from Higher Mobility and middle carer's to ZERO!!!!!!

 

We are now at the tribunal stage and out Benefits Welfare rights worker is very very confident of it getting overturned as we have overwhelming medical evidence.

[cbbc]

Hi, I have got a letter from DWP to my MP saying that they took information from my GP and specialist into consideration when making their decision to not allow my claim for ESA.

This is totally untrue, they only got in touch with my GP to tell him I had failed the ATOS medical. I suppose they try to influence your GP not to give you any more sick notes.

A 'doctor' who knows nothing about you decides in 10 minutes if you are fit enough for work or not.

I could write to my MP and say that the DWP are liars but he must already know that.

I feel so fed up with it all now.

I have just written to the DWP to find out if they have to keep to waiting times like the NHS does as I have been waiting for over 6 months now to go to tribunal and I really feel that this is acceptable. The DWP seem to think that as they are allowing me to stay on ESA then I shouldnt mind too much but I want to stop thinking about this every day.

[paulb1310]

To answer Simon, no I don't work for the DWP. No way would I want to! I do have experience of welfare rights work. The DWP have a policy of exchanging medical reports for one benefit for another. I am using their terminology - what they consider to be a "report" and what we consider to be a "report" are not the same thing. However if you have a medical for ESA or IB and have a claim in for DLA then the report may magically find its way to the decision maker looking at the DLA claim. Can a DLA claim be looked at again on the basis of an ESA report? This is more difficult. A new medical opinion is not in itself a change of circumstances but in reality that won't stop them as they ignore caselaw unless it suits them not to. An ESA medical is an opinion, every medical report is an opinion when you think about it. It is not necessarily a fact, there is a difference. For example, ESA "doctor" indicates claimant can walk 200m. This is not a fact it is an opinion. It can only become a fact if the claimant is observed to walk 200m. Sorry to drone on but feel to pick my brains, what little I have left is just about still working

[Surfer01]

Thanks Paul that was quite infomative.

[WelshMam2009]

I tend to agree with Paul insofar as I believe they share information.

 

It actually worked in reverse for me. I went for an ATOS medical after one year on IB (now ESA) and was deemed unfit for work. At the same time I applied for DLA which I was subsequently awarded without any further medical or report from my GP.

 

I believe they had access to the ATOS report especially as they drew conclusions that, in my ignorance, I don't believe I had sufficiently detailed on my application form.

 

It's worthwhile Surfer just checking up on the point scoring system to make sure that all of your relevant medical problems are recorded accurately....and remember to make sure that they know what you can't do instead of getting you to concentrate on what you can!!

 

Best of luck!!

[paulb1310]

Welshmam makes a good point. If you are awarded ESA it is worth asking for a copy of the "medical" report as it can be useful for other benefits. Whats good enough for the DWP also works for us as well!

[Simon7685]

Sorry if you thought I was getting at you Paul, I wasn't. It wouldn't have bothered me anyway, even if you had worked for the DWP, I just wondered where you had gained all your knowledge of the system.

 

Surfer01 hopefully in your case they won't use any ESA results to change a DLA, or any other claim entitlement but you need to be aware that it could be a possibility.

 

What a good idea to use an ESA report for other benefits, as you rightly say Paul, what's good for the goose is good for the gander. Though I expect there will be a rule against it somewhere in the DWP manual........

Rule 36 section 11 sub paragraph 2.

If the claimant has a head they can therefore by definition work at least 40 hours per week and walk 3 miles each way to the job. If the claimant does not have a head, they may be able to work but dispensation should be given to allow ESA on the strict requirement that this can't be used in connection with any other claim unless the claimant has attained the the new retirement age of 137.

[RaeUK]

Hi, I have got a letter from DWP to my MP saying that they took information from my GP and specialist into consideration when making their decision to not allow my claim for ESA.

This is totally untrue, they only got in touch with my GP to tell him I had failed the ATOS medical ... I could write to my MP and say that the DWP are liars but he must already know that ...

 

cbbc: The answer is a lot simpler. Ask your GP to confirm what contact the DWP have made then forward that to your MP.

I spoke to my GP ages ago when I read the DWP's documents for my tribunal. As they stated they took all medical history into account. As all my notes are computerised, my GP scanned through them whilst I was watching and confirmed the only time they have been in touch was the letter saying ESA was withdrawn.

 

Best wishes

Rae.

Edited March 10, 2010 by RaeUK
Because I'm worth it...

[paulb1310]

A word of caution, when the DWP refer to "taking your medical history" into account this does not necessarily mean they have had access to your medical records or actually contacted your GP. It is slightly different for DLA and ESA but as far as I know for ESA the phrase merely relates to the medical history as recorded by the doctor who does the interview. The doctor then takes that history into account when coming to his opinion on what points you score.

[RaeUK]

I don't think so, paulb1310.

 

'... the Decision Maker has to consider all the evidence and is not bound to follow any particular Health Care Professionals opinions on the descriptors...'

 

Qouted from the DWPs defence paperwork for my tribunal. I would have thought that, to consider all the evidence, one must first collect all the evidence. When peoples medical history is deliberately not called for than this decision becomes totally one-sided and unfair.

Other sections, incidently, clearly state that a GP should be ignored...

 

Best wishes.

Rae

Edited March 11, 2010 by RaeUK
I'm at the bus stop waiting for the revolution...

[paulb1310]

Yes but the evidence has to be before the decision maker and the decision maker won't seek any other "evidence" other than the claim pack and for ESA the ESA medical report. There are lots of conflicting Commissioners decisions on who gives the best "evidence". The decision maker is not medicallly qualified so if he gets a report from a "health professional" who is supposedly "trained" to give reports on ESA who do you think he will believe - you or the health professional. Decision makers have alleged that GP's just write what the claimant tells them so their "evidence" should be ignored.

[RaeUK]

I appreciate that. Also that in 99.99% of cases GPs do not write just what the claimant tells them. The twin points I was illustrating is that the DWPs own guidelines say contrary to their own actions and that a system of one-sided guidance is fundamentally flawed from the start.

Best wishes.

Rae.

[paulb1310]

I agree with you Rae, sorry I tend to think like a welfare rights officer at times! Decision makers interpret the rules as they go along - I know they shouldn't but that doesn't stop them. Let's suppose I claim DLA. My GP gives me a letter saying I can only walk 40 yards. The DM will refuse that arguing that the GP is biased. If the GP says that I can walk 400yards then the DM will accept that saying the GP is giving an unbiased opinion. Conclusion - you can't win!

[RaeUK]

No harm in thinking like a welfare rights officer! I like your illustration as I'm sure that's exactly how they see it.

Best wishes.

Rae.

[Surfer01]

Contact DIAL and ask them to complete a DLA application on your behalf. See Dial UK - Disability Information, Disability Rights, Disability Policy