Help with going to ESA trial after being placed in WRG

[Tashie026]

Hi,

 

My wife has been put in the work related group for ESA, however she is appealing and it is soon going to trial. She has cerebral palsy and as a result of the nervous system being damaged at birth also suffers from general anxiety disorder and nocturnal bruxism (severe night time teeth clenching) which gives her severe pain and vertigo. She was put on ill health retirement in Feb 2012 at 36 years of age. If placed in the support group we would be entitled to about £60 a week, which would be helpful for her private osteopath treatment (there is no physiotherapy treatment on the NHS for adults with cerebral palsy) and special shoes she needs to wear. How can the government expect her to go to a trial and represent herself when she is in bed most of the time feeling very sick and dizzy?

 

What sort of questions will they ask her at the trial? will they all be relevant to her case? do they ask about daily living limitations, and pick out things from the esa50 and ATOS medical questionnaire. Will they try and catch her out?

 

What sort of evidence would go in her favour? She is seeing a neurologist on 18th March and hopes to get a report from him.

 

She is an intelligent lady and worries that this might go against her at the trial.

 

Any help on this would be gratefully received as her anxiety levels are currently very high.

[Nystagmite]

Does she meet the criteria (just one is required) for the support group? That's the only way she can appeal.

[honeybee13]

Hello there.

 

When you say it's going to trial, do you mean a tribunal or something else please? I'm not being difficult, just wanted to understand so we can advise you.

 

My best, HB

[RaeUK]

Indeed. It's a Tribunal not a trial. Generally speaking they're very relaxed and the panel will just ask her about her health. And go over the medical evidence she supplied.

[cleaver]

Indeed. It's a Tribunal not a trial. Generally speaking they're very relaxed and the panel will just ask her about her health. And go over the medical evidence she supplied.

 

That is assuming that she has sent some evidence in! Most tend to wait until the hearing date and hand it in then.

 

Yes I know that ATOS/DWP ask for evidence early on - when the ESA50 is returned, but some don't bother knowing that neither ATOS or the DWP don't bother to read it!

[RaeUK]

On the contrary, cleaver, the vast majority of people diligently send in evidence aforehand.

[Tashie026]

As she is getting constant vertigo and associated syptoms we are appealing against descriptor 10: awareness of everyday hazards.

 

We phoned the court and they told us to send any extra evidence before she goes to court to see the judge and doctor.

 

We are going to send in the following evidence:

 

How it affects her day to day - life limitations.

medication and side effects

what tried to do to get better

what disputing from bundle - the dap have changed the wording on descriptor 10 on purpose.

Evidence from

private osteopath report

neurologist report (appointment on 18th March)

Maxio Facial report (appointment on 1st March)

Internet evidence of condition?

 

Her gp was never asked for a EA113 form and just sent the DWP a few lines that did not explain her condition fully. She asked last week for him to do a report for her and he said the courts have to request it? which has left us totally confused. We are speaking to the practice manager this week about it.

[honeybee13]

Hello again.

 

You seem to be progressing well with this. In case it helps, here's a link to the forum sticky about appeals. There's a template letter you can slot your points into, if you need it.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?251737-Appealing-or-going-to-a-Tribunal-Some-useful-information%282-Viewing%29-nbsp

 

HB

[cleaver]

On the contrary, cleaver, the vast majority of people diligently send in evidence aforehand.

 

That is as may be, but I am aware of many that don't simply because they have no faith in ATOS or the DWP to take it all into account in the proper manner!

 

Likewise, in my case, they clearly didn't, so I too wasted my time.

 

The Tribunal is the only avenue where a qualified doctor will examine it.

 

Besides which, ATOS are obliged and required to obtain evidence themselves via the ESA113 form to the GP.

[Nystagmite]

The evidence must be relevant to how your partner was at the time of the face to face assessment if she had one.

[osdset]

That is as may be, but I am aware of many that don't simply because they have no faith in ATOS or the DWP to take it all into account in the proper manner!

 

Likewise, in my case, they clearly didn't, so I too wasted my time.

 

The Tribunal is the only avenue where a qualified doctor will examine it.

 

Besides which, ATOS are obliged and required to obtain evidence themselves via the ESA113 form to the GP.

 

At the time of my assessment I was not in possession of concrete evidence to support my claim due to delays by the NHS, I was expressly told by the HCP at my assessment that ATOS would be contacting my GP/ Thoracic specialist for medical evidence, so I was not to worry.

 

My GP has never received a request for evidence from ATOS/DWP, nor has my consultant, the only thing sent out by the DWP was a notification informing the practice that I had failed the assessment, and there was no further need for sick notes.

 

I imagine this scenario is common, not everyone has had a long term history of health problems and evidence may take time to gather so it's no wonder that in situations like this, the only time the evidence is presented or read is at tribunal.

Edited February 18, 2013 by osdset

[estellyn]

I'm not sure that the descriptor you've chosen can be used in relation to vertigo. Basically, for that descriptor you have to show that due to cognitive impairment or mental disorder, that the person is unaware of common hazards and so may cause either themselves or someone else injury. Just being at risk or injury isn't enough to meet the descriptor.

 

You may be better off trying to prove that being put in WRAG and having to attend WFI's would cause her health to worsen - if that is right.

[Tashie026]

Now we are totally confused:

 

From the DWP descriptors we want to appeal against this:

 

12. Awareness of everyday hazards (such as boiling water or sharp objects).

 

(a) Reduced awareness of everyday hazards leads to a significant risk of: (i) injury to self or others; or

(ii) damage to property or possessions such that they require supervision for the majority of the time to maintain safety.

 

as with vertigo she needs constant supervision. Can we appeal against this descriptor? or are we just wasting our time.

 

The DWP said that she would need to fall into one of the support group descriptors and score 15 points to get into the support group.

 

Also she has cerebral palsy and is in significant discomfort due to tightness, weakness, pain and postural compensations so could we also appeal against this descriptor: (She has been awarded 9 points on the mobility descriptor by the ATOS doctor)

 

(a) Cannot either:

(i) mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;

or

(ii) repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion.

 

I have also written a four page letter to our MP explaining about everything. I don't know if it will help but anything is worth a try.

 

Any advice is really useful. Many thanks

[Tashie026]

Also forgot to ask, is the doctor at the tribunal just a general GP?

[abc123def]

Always has been for me. (6 Tribunals to date)

[estellyn]

Now we are totally confused:

 

From the DWP descriptors we want to appeal against this:

 

12. Awareness of everyday hazards (such as boiling water or sharp objects).

 

(a) Reduced awareness of everyday hazards leads to a significant risk of: (i) injury to self or others; or

(ii) damage to property or possessions such that they require supervision for the majority of the time to maintain safety.

 

as with vertigo she needs constant supervision. Can we appeal against this descriptor? or are we just wasting our time.

 

The DWP said that she would need to fall into one of the support group descriptors and score 15 points to get into the support group.

 

Also she has cerebral palsy and is in significant discomfort due to tightness, weakness, pain and postural compensations so could we also appeal against this descriptor: (She has been awarded 9 points on the mobility descriptor by the ATOS doctor)

 

(a) Cannot either:

(i) mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;

or

(ii) repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion.

 

I have also written a four page letter to our MP explaining about everything. I don't know if it will help but anything is worth a try.

 

Any advice is really useful. Many thanks

 

For the first descriptor you mention, the important qualifying criteria is 'reduced awareness of hazards' - needing supervision for any other reason doesn't count towards that descriptor. Sorry.

 

Yes, the mobilising support group descriptor may be your best option - as long as you have consistency from the ESA50 through - so you can't have put on the ESA50 'can walk 100 metres' and now say 'can walk less than 50 metres'. But if you've put less than 50 metres on the ESA50 and can get supportive evidence, then probably best to go with this descriptor.

[Tashie026]

So even though she sent a revision letter asking for a reconsideration on descriptor 'reduced awareness of hazards', we can change it to the mobility descriptor? This is all so confusing.

 

Here is what she wrote on the ESA50:

 

I cannot walk more than 30 metres without stopping or getting tired, due to three major factors which are:

 

The tiredness and discomfort in my legs, lower back, hips and feet.

The stiffness from the cerebral palsy also makes my body tense up when I try to walk, which makes it difficult.

Also I have to contend with two major balance problems - one coming from the cerebral palsy mobility limitations and the other coming from tension from the tight muscles in my head, neck jaw and ears from the nocturnal bruxism. The balance problems may mean I have to stop and hold on to something or someone on a regular basis.

 

The DWP incorrectly wrote that at her medical she said she can walk 50-75 metres. So is it there word against hers?

 

I think we might as well give up, because the government are trying to catch her out at every hurdle.

[RaeUK]

The tribunal is independent and nothing to do with the DWP. They will look at all the information provided (by both parties) and assess it in conjunction with the claimant. Their objective is to try and award the best they can. In this case it is whether the group should be WRAG or Support. They will look at all the relevant Support descriptors and see what, if any, apply. There won't be a need for the claimant to say 'I think it should be that one', it will all be looked at.

Being aware of the Support criteria simply means you are prepared correctly and have the relevant supporting evidence submitted.

[honeybee13]

I agree with the others.

 

When I had my tribunal, the panel asked me questions and believed what I told them about my health problems. If your wife attends and tells the truth, I would be very disappointed if justice didn't prevail.

 

HB

[cleaver]

I agree with the others.

 

When I had my tribunal, the panel asked me questions and believed what I told them about my health problems. If your wife attends and tells the truth, I would be very disappointed if justice didn't prevail.

 

HB

 

That isn't always the case though. Without any evidence to back up your argument the Tribunal have to weigh up as to whether you are damn good liar and actor/ess or you are being totally truthful.

 

I am aware of one case where the claimant (who was totally genuine with a genuine claim) was accused of exagerating their claim to such an extent that the Tribunal refused to accept anything that they had said. They stated that this was because (a) there was no medical evidence whatsoever presented and (b) the claimant honestly told the Tribunal that they don't see their GP as often as they should as they 'just don't see eye to eye'.

 

The Tribunal chair wrote in the judgement 'anybody with that level of disability and illness would be seeing their GP on a regular basis'.

[estellyn]

So even though she sent a revision letter asking for a reconsideration on descriptor 'reduced awareness of hazards', we can change it to the mobility descriptor? This is all so confusing.

 

Here is what she wrote on the ESA50:

 

I cannot walk more than 30 metres without stopping or getting tired, due to three major factors which are:

 

The tiredness and discomfort in my legs, lower back, hips and feet.

The stiffness from the cerebral palsy also makes my body tense up when I try to walk, which makes it difficult.

Also I have to contend with two major balance problems - one coming from the cerebral palsy mobility limitations and the other coming from tension from the tight muscles in my head, neck jaw and ears from the nocturnal bruxism. The balance problems may mean I have to stop and hold on to something or someone on a regular basis.

 

The DWP incorrectly wrote that at her medical she said she can walk 50-75 metres. So is it there word against hers?

 

I think we might as well give up, because the government are trying to catch her out at every hurdle.

 

Yes, definately go with the mobility descriptor for the support group, get medical evidence to back up that she can walk only 30 metres. Make the point that this is all she can do repeatedly and reliably.

 

Normally on the WCA report, it will say what evidence they've used to decide she can walk 50-75 metres - this can usually be proved to be pretty idiotic (for instance, saw the claimant walk 15 metres, therefore she can walk 75 metres).

 

Its all about making the argument that the decision making and therefore report by the ATOS assessor is faulty, therefore giving the Tribunal free reign to make their own new judgement.

[joeblogs]

That isn't always the case though. Without any evidence to back up your argument the Tribunal have to weigh up as to whether you are damn good liar and actor/ess or you are being totally truthful.

 

I am aware of one case where the claimant (who was totally genuine with a genuine claim) was accused of exagerating their claim to such an extent that the Tribunal refused to accept anything that they had said. They stated that this was because (a) there was no medical evidence whatsoever presented and (b) the claimant honestly told the Tribunal that they don't see their GP as often as they should as they 'just don't see eye to eye'.

 

The Tribunal chair wrote in the judgement 'anybody with that level of disability and illness would be seeing their GP on a regular basis'.

 

I seem to remember that case, they were assisted by DIAL North West Kent

[Nystagmite]

The criteria is about mobilising (using a wheelchair, etc) and not walking.

[RaeUK]

Thank-you, Mr Blogs ...

[estellyn]

The criteria is about mobilising (using a wheelchair, etc) and not walking.

 

Good point, forgot to add that bit - would there be problems wheeling herself in a wheelchair?