I have a friend who has an ESA tribunal soon, help

[estellyn]

Yes Osdset

 

I already have downloaded that I haven't picked though it all yet but there are particular instances which are similar to his situations. Please read below what I have saw in this.

 

 

Not sure if this recent decision may

 

be useful.

 

In CE/1757/2011 the claimant

 

suffered from mental health

 

problems and alcohol abuse.

 

Judge Levenson agrees in principle

 

with the Secretary of State that

 

needing the use of alcohol to visit

 

new places or engage in social

 

contact can be compared with the

 

use of self-hypnosis or relaxation

 

techniques or anti-anxiety

 

medication.

 

However, he does state that it is

 

matter of degree -

 

“A small glass of beer or lager

 

before going out might be one

 

thing, half a bottle of vodka would

 

be something else.”

 

In the latter kind of case, Judge

 

Levenson holds that Regulation

 

29(2)(b) would be brought into play

 

-

 

“…the claimant 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 the claimant were found

 

not to have limited capability for

 

work.”

 

Judge Levenson outlines that the

 

First Tier Tribunal considered this in

 

the context of the claimant’s

 

attempts at self-harm. In respect of

 

alcohol it stated that “the alcohol

 

problem would not be a risk

 

because on the evidence of the

 

appellant he can function with the

 

amount he consumes for example

 

before he goes out”.

 

However, in upholding the

 

claimant’s appeal and remitting it

 

fore rehearing Judge Levenson says

 

that -

 

“It seems to me that if a claimant

 

has to drink significant amounts of

 

alcohol before going out, even to

 

the pub, and 3 ½ cans of alcohol

 

before facing the First Tier Tribunal

 

then it is incumbent on the First

 

Tier Tribunal to consider whether

 

and how much alcohol he might

 

need to drink before going to work,

 

on the way to work, and while at

 

work, in order to actually work.

 

Significant amounts on a daily basis

 

might well pose a substantial risk to

 

his own health and also (depending

 

on the nature of the work) to the

 

health of others. The First Tier

 

Tribunal was in error in not giving

 

proper consideration to this issue.

 

The new panel must do this.”

 

 

Would I be allowed to use past case hearings within his Submission Document?

 

How is this best applied? This case seems to me to be a powerful arguement for my friend. This is his first tribunal. Is he at risk or would he upset the Judge?

 

thank u

 

Yes you can quote upper tier decisions in the submission document - in fact it is advisable if you can find one that supports your case, as this one appears to. It doesn't upset the judge, as long as it is written respectfully. It is also wise if quoting precedent setting cases to send the submission in advance, so that the judge can obtain a copy of the decision to refer to.

[Carvel]

Thank you Osdset, Nystagmite and Estellyn

 

You comments have given me confidence for me that I am going in the right direction. I think the use of the case by Judge Levenson is and could effective so thank you.

 

If any of you could help further with the descriptors 14c, 15 a, 15 c, 16 b and 16 c (Nystagmite helped with 6 b and 6 c) it would help me qualify his situation better.

 

thank u

[Carvel]

Any of you guys online at all ?

 

thank u

[Nystagmite]

15 is about getting around. What happens if your friend goes out? Think about their safety and safety of others. For example, do they wander off, etc.

 

14 is about coping with change. What happens if changes occur in daily routine? Can they manage with a minor change (such as last minute doctor appointment) ?

 

16 is about social engagement. Can your friend cope with others? Does your friends behaviour cause problems for others? Other people being friends and people they have never met before.

[Carvel]

Thank you Nystagmite. I will ask him further.

[Carvel]

Hi Nystagmite

 

Regards descriptor 15a, he just can't do that at all whilst sober due to social anxiety. Whilst he doesn't pose a danger to others, he would experience a high of anxiety. For example the last time he attempted to leave his front a few months ago, sober, just to go to the outside bin at the back of his block of flats, he experienced this anxiety, and turned back half way down the stairs and ran back into his flat as he felt a panic attack coming on.

 

Descriptor 14 this is a difficult one to qualify he don't really have any changes as such, all his days are all the same.

 

Descriptor 16a he is socially isloated really I only speak to him online (social website) and has no family. He does not engage anyone sober, he avoids it completely and only speaks to neighbours if he bumps into them, just saying hello etc, I brief conversation.

 

He has just had a set back today. The Work Program (voluntarily) alcohol worker cannot take him to tribunal or give any evidence as they are sub contracted by a4e and paid by the DWP. He doesn't want the tribunal to go through on paper evidence as he understands he will not win. The CAB told him they can't go with him. Any suggestions on advocacy?

 

thank u

[Nystagmite]

Paper is generally not advisable. Is there a DIAL in his area?

[Carvel]

No Nystagmite.

[Nystagmite]

The council may have a welfare rights department?

[Carvel]

Nystagmite... Not that I can see. He lives in St Helens

[estellyn]

http://www.mylocalservices.co.uk/Merseyside/Charities_and_Voluntary_Organisations/1924064/The_Welfare_Rights_Centre.html

[Carvel]

Hi Estellyn thank you.

 

I have rang that number before today its rings then goes to a Skype answer machine unfortunately without reply. Maybe they don't exist anymore, I don't know.

 

Going back to the descriptors and as mentioned with his condition. He is essentially 'two people' with regards the WITH ALCOHOL and WITHOUT ALCOHOL. It is difficult to base an arguement with these factors for him. I understand you can only use one but which ones are best to apply?

 

thank u

[osdset]

deleted wrong thread

Edited October 1, 2012 by osdset

[Carvel]

Deleted response as per Osdset above

Edited October 1, 2012 by Carvel

[Carvel]

Going back to post # 37 could Nystagmite, Estellyn please comment further

 

thank u

[Carvel]

Hello any of you about at the moment

[estellyn]

Hi Estellyn thank you.

 

I have rang that number before today its rings then goes to a Skype answer machine unfortunately without reply. Maybe they don't exist anymore, I don't know.

 

Going back t the descriptors and as mentioned with his condition. He is essentially 'two people' with regards the WITH ALCOHOL and WITHOUT ALCOHOL. It is difficult to base an arguement with these factors for him. I understand you can only use one but which ones are best to apply?

 

thank u

 

Can he do the descriptors without drinking - for instance going out and about? What about socialising, can he do that sober or does he need to drink, what effect does being drunk have on social encounters, can he be aggessive, confrontational difficult? What happens if there is a sudden change he needs to deal with, does this cause him to drink? What type of changes does he have the most difficulty dealing with. What are the long term effects of drinking on his health?

[Carvel]

Hi Estellyn

 

1. He doesn't leave his front door, at all, for any purpose or for any reason if he is sober. His anxiety stops him from doing this, he needs to have drank at least 6 cans of super strength cider before he can leave his front door, and even then he has anxiety.

 

2. He is socially isolated. He cannot engage anyone in any form sober.

 

3. He avoids social contact (physical) i am unaware of any confrontations as such but I am aware he has had some instances. For example when he was in a hostel staff give his personal door key to another resident in error and he was mad.

 

4. As for a change in situation. An example was yesterday. He was advised that his rep couldn't attend the tribunal. I know that affected him deeply as he was drinking more than he would and was not particularly pleasant towards me yesterday in emails.

 

5. He knows that what he is doing is going to kill him long term yet he continues to drink.

 

thank u

[estellyn]

Hi Estellyn

 

1. He doesn't leave his front door, at all, for any purpose or for any reason if he is sober. His anxiety stops him from doing this, he needs to have drank at least 6 cans of super strength cider before he can leave his front door, and even then he has anxiety.

 

2. He is socially isolated. He cannot engage anyone in any form sober.

 

3. He avoids social contact (physical) i am unaware of any confrontations as such but I am aware he has had some instances. For example when he was in a hostel staff give his personal door key to another resident in error and he was mad.

 

4. As for a change in situation. An example was yesterday. He was advised that his rep couldn't attend the tribunal. I know that affected him deeply as he was drinking more than he would and was not particularly pleasant towards me yesterday in emails.

 

5. He knows that what he is doing is going to kill him long term yet he continues to drink.

 

thank u

 

These are the thypes of things you need to include, and tie to best descriptor in each section to describe his issues.

[Carvel]

Hi Estellyn

 

Just for my peace of mind (and his ultimate well bring) do you think the descriptors I have mentioned apply

 

thank u

[Carvel]

And if so can you please confirm what descriptors over and above i have mentioned. Perhaps an example of how to word it

 

thank u

[osdset]

Carvel, When is your friend's appeal exactly?

[osdset]

And if so can you please confirm what descriptors over and above i have mentioned. Perhaps an example of how to word it

 

thank u

 

Sorry if I have missed it in one of your previous post's, but when exactly is your friends appeal date?

[Carvel]

About a month, is the actual date important? Have I missed something