Interesting ESA tribunal next month need some advice.

[maccabi]

I have my appeal in three weeks and although I had received the copies of my wca assessment and esa50 form months previously today I finally received the documents the DWP had presented as additional evidence.

 

You guys will like this, and why i need advice as to my best way forward at this point.

 

I suffer from chronic cluster headaches you'll have to google it yourself as i cant post a link.

 

So back in Jan I went for my WCA, to give you an idea of just how bad it was. I filed a separate complaint with ATOS over it who in march sent me a letter which described the WCA and DR as "unprofessional and unfortunate", and offering their sincere apologies and wanted me to know they had sent a copy of their findings to the DWP asking them to request a new WCA be given to myself asap as it was their opinion it should be disqualified .without going into the whole ins and outs, My WCA lasted 6 mins, the doctor admitted making up the answers on the questionaire using his "professional opinion" and my favourite part the doctor had actually added a hand written note at the end stating i offered no medical evidence i had a condition and was suffering from nothing more than eye strain in his opinion as i had said i have reading glasses but forgot to bring them as i hated wearing them. (even though he actually quoted verbatim from both my esa50 and from two of the letters i gave him copies of, from my neurologist in another part of the assessment report)

 

Since march i have constantly been phoning the DWP about this letter, Even though I know ATOS sent them a copy, I have faxed two copies of it and sent it to them recorded delivery they at every phonecall point blankly refused to admit they had it until today..

 

Today i received from the Tribunal service a copy of the DWP'S notes and evidence and lo and behold there is the letter from ATOS and a note stating a DM had looked at it in MARCH and had concluded that the original WCA was valid, so there was no need to request a new WCA. The letter ATOS sent the DWP is almost the same as mine but adds that their own doctor who reviewed my esa50 and medical documents completely disagrees with the WCA assessment and he would have considered it a foregone conclusions I was unfit for work just by my medical documents alone (letters from both my GP and neurologist) .It also says they request the DWP should issue a request for a new WCA.

 

to say im fuming about this is an understatement, but my question to you is what would be my best course of action now in regards to my tribunal, i am fairly certain i will win just on the medical evidence alone.

But also want to make sure that the DWPs actions are included and highlighted as it shows a complete lack of professionalism and decency as they have basically sat on the ATOS letter/opinions and findings for months and lied to me continually every time i asked about it.

Edited August 10, 2011 by maccabi

[leemack]

Your best course of action is to forward with the tribunal and present all your evidence there. You will also need to write a good submission (statement of your case) pointing out all the things Atos did wrong and the errors in the report.

 

Their letter stating that they now feel you're unfit to work will be pretty damning.

 

Even so, the Tribunal will also independantly assess whether you score enough points to be found to have limited capability for work, so you will also need to state in your submission exactly which points you think you should score, and justify why.

 

Have you looked at honeybee's sticky on appeals? It has lots of good information. A new guide on the ESA50 that's been posted may also give you some insight into how to look at each descriptor and what info to give. Although you're not completing the form, now, the principle on the information you need to get across at Tribunal is the same.

[maccabi]

I have read everything i can find on the appeals process,

my actual question was more along the lines of how can i present my case in the appeal to show that the DWP have sat on the fact they knew in march my WCA was incorrectly done, and knew ATOS had requested I was given another WCA

 

Basically the DWP has made me wait till now for no reason, and in doing so wasted the tribunals time and mine for an appeal that needed not to have been started.

[speedfreek]

Ihow can i present my case in the appeal to show that the DWP have sat on the fact they knew in march my WCA was incorrectly done

 

You don't!

 

The Tribunal looks at the decision and nothing but the decision.

 

They don't give a lost giraffes flip flop in a wigwam about whether your WCA was correct and proper or if ATOS said you should have a new one.

 

If you want to proceed with that angle then you would lodge a complaint with the DWP (would that be for maladministration?) and copy that to your local MP.

 

Your main concern with the Tribunal is stating that I should have been awarded ESA because I fit this that and the other descriptors as stated here. The fact that ATOS have admitted the assessment was load of cobblers works in your favour as the DWP will find it hard to provide evidence against you. This means that you have a free run with the Tribunal to get your points across for why you should have been awarded ESA.

 

Edit: I would bring the ATOS failure to the tribunals attention and submit copies of the letters. But that's just for information to show that even ATOS has admitted the report produced was wrong and can not be relied on/should not be used as evidence against you when they make decision.

Edited August 11, 2011 by speedfreek

[maccabi]

So when i go to the tribunal they will basically only deal with myself demonstrating why i consider I fit certain answers on the WCA

 

this is the bit im worried about as the "doctor" answered every question without asking me, i didn't even know there was a questionnaire until i got a copy of it. (yes i should have reseached it better but the dwp had lead me to believe that it was a mere formality andIi was going to be put onto the work related grouping regardless as i wasn't able to claim jsa due to not meeting the ability to work criteria)

 

so basically my plan was/is to show the tribunal the evidence that i wasn't questioned and i assume they would then need to ask me what my answers would have been correct?

 

so basically the tribunal for me will be me answering the descriptors i wasnt asked before.

[leemack]

You say you've read everything on the appeals process, but part of the appeals process is knowing how to present the information to win your case. The desired outcome of your appeal should be to be found to have limited capability for work, not to get a new WCA. The DWP have made their decision - and this is NOT to give you a new WCA and to uphold their original decision - this is what you are appealing. Trying to get the DWP to change their decision at this stage is pointless. They do reassess some just prior to Tribunal, and the best chance of having the decision overturned is to make a strong submission of your own, making it clear to anyone who reads it that you are unfit for work.

 

Your case is not simple. Cluster headaches are a bit like backpain or fibromyalgia, in that it is a diagnosis treated with scepticism by the DWP - in all probability it is your diagnosis that is interfering with any decision change. Even at Tribunal you will need to go armed with evidence and studies of the severity of cluster headaches in sufferers and the symptoms they cause.

 

The best way to get the desired outcome is to stop focusing wholly on your ATOS experience. This can only be part of what you present, in writing, to the Tribunal.

 

Your submission should consist of:

 

Introduction - a short statement of what you're appealing.

 

A paragraph stating the history of your condition and medications, including side effects (up to and including the date of ATOS assessment, but not since)

 

A paragraph stating what medical evidence you are offering (including any studies or writings on the effects of cluster headaches on activities referred to in the descriptors.

 

Point by point statements of exactly what was wrong with your ATOS report - your complaint and correspondance should be reffered to here.

 

Then a statement each for each relevant descriptor you feel you meet, and why - ie what about your condition causes you to meet this descriptor, and examples from your daily life to show that you meet the descriptor. Making sure to state the descriptor and underline it at the beginning and give the points score at the end. Also include any support group descriptors.

 

A paraghraph about whether you meet the exceptional circumstances if applicable to you.

 

A closing paragraph respectfully requesting you be found to have limited capability for work or work related activity.

Edited August 11, 2011 by leemack
tone down

[speedfreek]

What Lee said! A tad harsh maybe but you have to get your head round what you're doing pronto.

 

The last question about the DWP sitting on things and failing to give you a new WCA assessment a tribunal would not be interested in as it is a failing by the DWP process. Any issues you have with that have to be raised with the DWP. The tribunal is only concerned with the original decision that you did not qualify for ESA.

 

The fact that ATOS have said that the WCA assessment (and I'm assuming here this is what you mean by questionnaire) the report that was produced was substandard and should have been done again is very relevant.

 

The DWP are saying based on this report from ATOS you do not qualify for ESA.

 

You have to explain to the tribunal why the report used was wrong and should not be used as evidence against you.

 

As well as this you have to tell them exactly why qualify for ESA. As Lee says write a submission detailing everything.

 

The tribunal will then ask you questions based on the all the evidence in front of them and make a decision by weighing it all up and deciding if you do qualify for ESA.

 

If as you say you have evidence from ATOS saying that the WCA the Dr did was substandard and should have been redone. It also means that the report from it too is substandard! If you can convince the tribunal of this fact then it should not consider anything written in it over any evidence you present.

 

Now it's up to you to fight your case and present enough evidence & reasons for why you should be awarded ESA to the tribunal.

 

Times tight here so you have to get cracking but if you've already got the evidence stating why the WCA assessment and Dr report is cobblers then you're half way there.

[leemack]

Sorry, I didn't mean to come over harsh! Just trying to get the message across. Sorry if I went overboard.

[maccabi]

@speedfreek

 

When I filed my appeal I sent a short letter explaining why I felt the decision was wrong it was short sweet and to the point.

 

when I received the copy of my WCAas part of the appeals process i sent the DWP a 36 page letter, where I outlined every single inaccuracy in the Dr's report, where he had ignored answers given on the esa50, completely contradicted himself in the report a good example being on one page he had stated I suffered NO side effects or adverse effects from my medication and my condition was "controlled" by my medication, the next page actually wrote "..Is no longer on medication due a severe side effect which lead to MR ..... being taken to hospital by ambulance with suspected heart problems.." I also answered every single question on the WCA giving an answer and a justification for that answer.

 

 

when the DWP received that letter from me the actual DM who decided my claim originally phoned me to discuss the points raised and basically said his hands were tied as he could only go off the WCA report he had, but under the circumstances having read all my points, once he had heard back from ATOS if they agreed with my complaints he would request i be given a new WCA as a matter of urgency regardless of the fact I filed an appeal.

This is why i mentioned a new WCA as that is what the DWP told me would be happening.

 

I will add i have the actual copies of the notes on my account now from the dm stating this, as I put in a data protection request for the notes held on my account.

 

that was in FEB, they received the letter from ATOS in March and have waited till now to admit they had it. This is the only point i wanted advice on.

I have no problem with the actual descriptors questionaire as i have already as i said given the answers i would have given, had i been asked and justification for each. I have the letter from ATOS stating the WCA was flawed beyond belief and why their own doctor who reviewed my wca and esa50 stated it was his opinion i would be "unfit for work", and numerous letters from both my doctor and neurologist detailing my condition both pre and post the WCA.

 

It just the fact I wanted to see if it was possible to "expose" in some way ,want of a better word. The complete waste of time and money and unneeded stress this whole tribunal has caused as the DWP could have settled the issue nearly 6 months ago .

[speedfreek]

It just the fact I wanted to see if it was possible to "expose" in some way ,want of a better word. The complete waste of time and money and unneeded stress this whole tribunal has caused as the DWP could have settled the issue nearly 6 months ago .

 

You raise a complaint about this with the DWP themselves. Some people also copy it to their local MP, as if they take it on things tend to move more quickly.

 

Once you have exhausted the DWP complaints procedure and if you are unhappy with their response, you then have the option to escalate that to The Independent Case Examiner http://www.ind-case-exam.org.uk/

 

Prob best to wait for the Tribunal result before you embark on this path though especially since it's 3 weeks away.

[julian20]

Hi

 

I too have chronic CH and up till recently have been in reciept of ESA under the work related activity group. Since my medical in September they have decided that I am fully fit for work ! not withstanding my condition has worsend and if I have passed up till now what is different!

 

I rang them today and was informed it was best to submit an appeal as they could not reinstate ANY money to me until that was done.

 

Any advice !

 

Many thanks