Dla refused based on 15 month old ESA medical exam

[meade2020]

I am desperately in need of some help.

 

I suffered from pert hes disease as a child lived many years pain free but in the last 5 years my health has deteriorated to the point where i am in constant pain.

 

I was awarded high rate mobility and high rate care for the last 4 previous years but this time when i renewed i was turned down.In my dla application i stated that i could not walk any distance at all without sever pain, and that i had difficulties with care needs etc.

 

The case is now going to appeal, i have received the submission from the dwp which shows they have made their decision based on a 15 month old esa medical atos report.

 

In my renewal i stated that my condition had worsened in the last 12 months,therefore any report compiled 15 months is totaly irrelevent.

 

When i received the refusal they said i could walk over 50 meters, i promptly spoke with my gp who then wrote a letter confirming my diagnosis and stating, that i have a sever disabilty and that i was in constant pain when walking not just after 50 meters.

 

My consultant also wrote a report, confirming i was under his treatment and that i had deteriorating pain, and that i have pain when walking he mentioned that when he last examined me in July 2010 my hip was extremely stiff with no rotational movement what so ever therefore making it difficult for him to get dressed, put on socks shoes and trousers and get in and out of the bath, he also noted that it is likey he will need a hip replacement.

 

Regardless of what ever the esa medical contained, the fact that i reported deterioration in my health in the renewal which was 15 months after the esa medical how on earth can they use that as the determining evidence when they have those reports from my gp and consultant which clearly say i have pain at all times when walking and also talk about my care needs?

 

They awarded me no mobility and low rate care, and in their submission they only reffer to the esa medical.

[rebel11]

Hi mea

 

Welcome to CAG

The guys will advise as soon as they are available

[meade2020]

Thank you this is making me feel ill with worry, i can not belive they have choose to use a 15 month old medical report of recent reports from my gp and consultant especialy as i reported a deterioation in my health

[Nystagmite]

Isn't there a limit on time in which they can use reports from? I seem to remember it asking on forms if you've had any medicals for disability benefits (IB, ESA, etc) within the last 6 months.

 

ETA: In my own case, they've decided to use medical evidence from my consultant from almost 4 years ago. Despite me sending in evidence for the same test from last year, stating how I am now.

[meade2020]

im not sure about any timelimits, i just dont see how they can use a 1.5 year old report over 2 new up to date reports that tell a diffrent story, its like they have choosen to use this old report over the new evidence just so they can refuse me IE they dont actualy care about my current state which is clear from my new evidence they where just intrested in using this old report to deniy me the benifit.

[dpick]

This is one that gets me when you go to appeal they only want to discus your condition at the time the refused claim was made they will not allow any evidence from after that date so how can they be allowed to use out of date reports at the same time.

 

dpick

[meade2020]

It dosent make sense to me either, im just hoping that tribunal will have the same understanding and realise that a 15 month old report simply can not be used as valuble evidence especialy as i have reported a deterioation.

[rightsforme]

Hi Mea

Contact welfare rights, CAB or whatever help is available in your area. They will help you put in a review or appeal if needed. The same happened to me my DLA was not renewed based on the FALSE ATOS so called medical for ESA that had already been overturned by tribunal. instead of the medical evidence. My representative put in for review and enclosed all evidence again and included the overturned judgment as well as some further medical evidence and it was reviewed and renewed for a further 2 years. They had not realized they had been supplied an invalid report that had been overturned and then based it on the correct medical evidence. It only took a few weeks for them to sort.

[Nystagmite]

The CAB adviser who is helping me, told me they can use whatever evidence they wish.

[satire]

Yes thay can use any or all evidence they choose. The ATOS one for ESA is the most respected as it is the one that has looked at abilities, not diagnosis.

 

ATOS are accepted by the DWP as the most experienced in terms of Occ. Health Assessment as laid down by Parliament

 

The new medical for DLA (PIP) will follow the same format as the ESA one and will be carried out by ATOS.

[speedfreek]

Yes whilst they can use any evidence they like the DM is supposed to correctly weight that evidence on relevance.

 

Using a 15 month old report and weighting that over and above any current medical evidence which says something completely different is just bad DMing.

 

This should make the appeal a lot more straight forward as any tribunal panel worth its salt will look at the current evidence and hopefully re weight it correctly giving you the correct award.

 

It seams to be a major issue at present with the DWP and the cynic in me thinks it's a political directive to manipulate the initial failure statistics. As there are far to many people who are having rock solid evidence just being completely ignored who then go on to win appeals which never should have happened in the 1st place.

[ErikaPNP]

Don't knock the ESA medical evidence too much. Use it to your advantage in the sense that your own medics evidence shows the decline in your condition since the ESA medical. The information provided in your opening post should be the basis for appeal. Put it into your own words but your appeal should be along the following lines - this advice is given on the basis that the ESA medical has not previously been argued against and has not been overturned at a prior appeal:

 

Your condition has deteriorated in the last year and in view of this, you provided up to date medical evidence in support of your renewal. I would then argue that the recent medical evidence you provided from your medical professionals clearly shows the deterioration since the ESA assessment took place 15 months ago. I would further argue that the DLA application form asks you to provide details of any medical professional you have seen about your disability in the last 12 months, and you have provided evidence dated within the last twelve months as asked.

 

Finish with the fact that the ESA medical evidence having been obtained 15 months ago, rather than disregarding your medical professionals evidence should support it, because it is clearly shows an exacerbation in your condition over the time period you have stated.

 

They wanted to submit the ESA to knock out your appeal? You just took that evidence and turned it right around on them.

[meade2020]

Don't knock the ESA medical evidence too much. Use it to your advantage in the sense that your own medics evidence shows the decline in your condition since the ESA medical. The information provided in your opening post should be the basis for appeal. Put it into your own words but your appeal should be along the following lines - this advice is given on the basis that the ESA medical has not previously been argued against and has not been overturned at a prior appeal:

 

Your condition has deteriorated in the last year and in view of this, you provided up to date medical evidence in support of your renewal. I would then argue that the recent medical evidence you provided from your medical professionals clearly shows the deterioration since the ESA assessment took place 15 months ago. I would further argue that the DLA application form asks you to provide details of any medical professional you have seen about your disability in the last 12 months, and you have provided evidence dated within the last twelve months as asked.

 

Finish with the fact that the ESA medical evidence having been obtained 15 months ago, rather than disregarding your medical professionals evidence should support it, because it is clearly shows an exacerbation in your condition over the time period you have stated.

 

They wanted to submit the ESA to knock out your appeal? You just took that evidence and turned it right around on them.

 

 

Thanks for all the replys the one above was very helpfull indeed thank you very much

 

i am still awating a date for my tribunal but i have submitted a letter stating that my new evidence that i have submited shows a deterioation on my health since the old esa report was done 15 months before this claim, my consultants report states i have deteroationg pain and that the pain has got worse in the last 12 months. so there fore any report conpiled over 12 months ago ie the atos report should not be used as new evidence shows a deterioration since then!

 

My consultants report also states His left hip was extremely stiff and had flexion of just 80 degrees with no rotational movement what so ever which therefore makes it very difficult for him to get dressed put on socks and shoes get in and out of the bath as well as other activity's of daily living.

 

It is likely that he will need a hip replacement but we are trying to delay this as long as possible as he is therefore having to cope as best he can with strong pain killers"

 

I personaly think my evidence is pretty good but after my experience considering the DWP still choose to rely on a 15 month old report despite me submitting the new evidence makes me worry just how fair the tribunals actually are alot of people have told me that they are not biased like the DWP they are actualy fair and therefore should not put any weight on the old atos report.

 

Im going to ask my gp to also write another report and hopefully get him to write about how the pain and extreme stiffness in my hip makes it very painful and difficult to get dressed etc as my consultants report stated. i just feel very awkward with my gp i dont find it easy to talk to him where as my consultant is very supportive and easy to talk to but im so determined to stand up for my self i will find the energy to do this.

[meade2020]

One thing i would like to ask from those who know the law is for example....

 

In my claim form i stated i can not walk any distance at all due to the sever pain in my hip i can not bare any weight on it without sever pain.

 

If the tribunal say actually you can walk x amount without sever discomfort there fore you don't meet the criteria, will they have to give an adequate explanation why they believe i can and does this have to be supported by evidence? because the only evidence in the appeal papers is this 15 month old at the time of the decision atos report, and then 2 reports from my gp and consultant which both say nothing but supportive things ie my gp states i am in pain at all times when walking not just after 50 meters my consultants report states that the pain has got worse since the esa report submitted by the dwp and also that my condition makes it very difficult for me to get dressed get in and out of the bath etc

 

would it not be a error in law if the tribunal referred to a 15 month old medical report if new evidence i have submitted shows a deterioration in my condition since that report was compiled?

Edited June 12, 2011 by meade2020

[Nystagmite]

In a word, no. They can use whatever evidence they like. In my case, they used a 3 year old medical report from my consultant, instead of the 6 month old one.

[meade2020]

In a word, no. They can use whatever evidence they like. In my case, they used a 3 year old medical report from my consultant, instead of the 6 month old one.

 

This was the tribunal not the DWP? did 6 month old report state your condition was worse than the 3 year old one? if so then surely this is unlawfully plain wrong?

[Nystagmite]

That was DWP, yes. The 6 month old report stated that my condition is now worse (it has been stable for about a year now) than it does in the 3 year old one. I was told they can use whatever evidence they want.

[meade2020]

Ok well i am aware the DWP can use what evidence they want but what about the tribunal? If they have 1 report that is 15 months old vs 2 new recent reports that state my pain has increased since the 15 month old report and also states that im in constant pain when walking and find it very difficult to get dressed put on socks and shoes get in and out of the bath as well as other activity's of daily living.

 

Now if the tribunal decided i can walk without pain and dont have thoose difficulties getting dressed etc like my consultants report states, can they refer to the 15 month old report for the reasoning when new evidence suggested otherwise?

 

To me common sense its self says that is wrong and you should go with the new evidence but after my experience with the DWP i have lost all faith in the system and its justice there is a massive lack of welfare rights in my aero my local cab has lost all funding from the goverment and is no longer alble to support appeals so im going this out alone im hoping somebody on here with knowledge of the laws can give their opinion on this situation its eating me up inside i have been worrying for the last 8 months its making me ill.

[leemack]

One thing i would like to ask from those who know the law is for example....

 

In my claim form i stated i can not walk any distance at all due to the sever pain in my hip i can not bare any weight on it without sever pain.

 

If the tribunal say actually you can walk x amount without sever discomfort there fore you don't meet the criteria, will they have to give an adequate explanation why they believe i can and does this have to be supported by evidence? because the only evidence in the appeal papers is this 15 month old at the time of the decision atos report, and then 2 reports from my gp and consultant which both say nothing but supportive things ie my gp states i am in pain at all times when walking not just after 50 meters my consultants report states that the pain has got worse since the esa report submitted by the dwp and also that my condition makes it very difficult for me to get dressed get in and out of the bath etc

 

would it not be a error in law if the tribunal referred to a 15 month old medical report if new evidence i have submitted shows a deterioration in my condition since that report was compiled?

 

If they use older evidence over newer evidence from your consultant and GP then they would have to justify this in a statement of reasons that you can ask for in writing after the appeal. If they do not justify their use of one type of older less favourable evidence over another, newer more favourable evidence, or if their justification makes no logical sense, then this can be considered an error of law which can be appealled to the Upper Tribunal.

 

Generally with mobility issues, most appeals I've seen that failed, have been due to the Tribunal deciding the person walked too well at the tribunal - ie walking past the window where they watch people arrive, or the appellant gets caught out with questions such as about doing shopping, walking when going on holiday (ie through the airport) or indicating out the window how far they can walk before they have to stop. The shopping one catches out an awful lot of people.

Edited June 13, 2011 by leemack

[meade2020]

If they use older evidence over newer evidence from your consultant and GP then they would have to justify this in a statement of reasons that you can ask for in writing after the appeal. If they do not justify their use of one type of evidence over another, or if their justification makes no logical sense, then this can be considered an error of law which can be appealled to the Upper Tribunal.

 

 

Thanks now that would make sense, i have an up to date report dated over 12 months AFTER the old esa medical which states that the pain has increased in since i was reviews 12 months ago, and i have also have copys of prescriptions from when i have been prescribed stronger pain killers which is yet another indication that my condition has deteriorated not only does that imo say the old atos report should not be used but the new evidence also states that i do have pain when walking any distance at all and also confirms the care needs i have.

[Nystagmite]

Generally with mobility issues, most appeals I've seen that failed, have been due to the Tribunal deciding the person walked too well at the tribunal

 

I found this too. I was asked how I got to the tribunal - because they saw me walk in. I stated I got the tube, got the wrong, changed, got the one I needed to get, got off at the right stop and managed to get slightly lost, despite using a map.

 

That pretty much backed up what I wrote on my DLA forms - I need help outside as I can't follow directions that well and tend to wander off.

[meade2020]

This has just become apparent to me while going through all of my paperwork

 

The DWP state in their submission that "medical evidence shows i should be able to manage most of my self care needs". thats the only reason they give in their submission for refusing care component

 

Can anybody give me some facts of law here

 

Am i correct in thinking the criteria is not weather you can "manage most of your self care needs" but weather you have difficulties and or pain doing them that counts? i was told that you don't have to receive any help at all there are plenty of disabled people who do "manage most of their self care needs" but they are reasonably required help?

 

 

This report they refer to that they claim says i can manage most of my self care needs also says the following

 

:Is able to manage stairs but with pain

 

: sleeps poorly due to pain

 

: bending down to put on socks and shoes usaly laces a problem

 

: Always finds it difficult to bath due to bending problems

 

: usually finds it difficult to dress bottom half socks shoes trousers due to bending problem.

 

: Appeared to have slight difficulty sitting for 20 minuets but did not need to get up from chair

 

: Had some difficulty rising from sitting in an upright chair but did not need physical assistance

 

: Gait observed limping and found this consistent

 

: Client can only sleep on right hip so will be in pain a couple of times during the night

 

 

Am i seriously missing something here? the evidence they are trying to use against me clearly shows i have difficulties and pain with various self care needs?

 

The evidence does indicate i could manage some self care but it clearly states i have difficulties while doing so and even pain weather i can "manage" most of my self care needs is surely irrelevant if i have difficulties and pain doing them which their evidence shows!

 

Seriously am i missing something? lets not forget i also have NEW evidence that says my condition has deteriorated SINCE this old medical! to me this is riddiculous on so manny levels its making me think i must be missing some sort of point?

 

 

i will be wrting another letter for the tribunal pointing all of this out can anybody give me any links to case law or definitions that say its not about if you can manage but if you have difficulties/pain? that would be a big help!

Edited June 15, 2011 by meade2020

[Nystagmite]

To be able to carry out self care, it must be without pain. That is, for example, if you dress yourself and are in pain after, it's reasonable to say you can't do this.

[leemack]

No, it doesn't have to be without pain, but if there is pain it has to be severe enough either that it cannot be done without the assistance of another person, or due to the pain it takes an unreasonable amount of time to complete.

 

So when they say that you don't have to be receiving help in order to qualify for care component - you still have to reasonably require care from another person. For instance, if due to severe pain it takes 30 minutes to get dressed, but the person doesn't have anyone to help them, so has been struggling along alone. 30 minutes would be considered an unreasonable amount of time to take to get dressed - therefore might reasonably be expected to require assistance to get dressed.

 

Also if doing the task - getting dressed - leaves you really debilitated and in severe pain then that would be classed as needing help.

 

Just having pain on taking care of bodily functions isn't a justification for care component. The pain has to be debilitating enough to make it unreasonable to expect the person to manage daily tasks without assistance.

[meade2020]

Thanks lee

 

30 mins is roughly the amount of time it does take me to dress just my lower half which is what i wrote on my form also the act of getting dressed not only causes me agony at the time but it leaves me in pain for hours afterwards!

 

 

how detailed does your evidence have to be? i cant see many gps writing huge long reports in similar detail to what i wrote in my claim form.

 

My consultant wrote a report that explains my diagnosis, states i have deteriorating pain in my hip which effects walking and then explains that my condition makes it very difficult to get dressed, in and out of the bath/ bed etc.

 

Is this enough information? or does the report need to also state how long it takes you to get dressed etc? i cant see consultants and gps writing such detailed reports i would assume that if they indicate your basic condition and difficulties so long as this is consistent with your claim form this should be enough?

 

i explained in detail to my gp and consultant all my needs but they both wrote pretty short reports, i didn't want to complain and ask the to write more detailed ones.

 

If for example i write down it takes me 30 mins to get dressed and i experience sever pain while doing so and it also leaves me in pain for hours after wards and my consultants report confirms hip pain and states that i find it very difficult to get dressed , can they still say you don't need that help without any other evidence that suggests i could do it without problems?

Edited June 16, 2011 by meade2020