Sending a personal account of illness with ESA50?

[RaeUK]

http://www.legislation.gov.uk/uksi/2008/794/regulation/21/made

 

http://www.legislation.gov.uk/uksi/2008/794/regulation/22/made

 

http://www.legislation.gov.uk/uksi/2008/794/regulation/36/made

 

http://www.legislation.gov.uk/uksi/2008/794/regulation/37/made

 

To put it in its simplest of forms:

 

(a)evidence of limited capability for work in accordance with the Medical Evidence Regulations (which prescribe the form of doctor’s statement or other evidence required in each case); MED3 & ESA85a/ESA85

 

(b)any information relating to a claimant’s capability to perform the activities referred to in Schedule 2 as may be requested in the form of a questionnaire ESA50 or other such form that is issued by the DWP and

 

©any such additional information as may be requested. Any other evidence that may be required by the DWP.

 

Unfortunately, none of that actually supports your contention that claimants shouldn't send supporting evidence.

Quite the reverse. A request to submit supporting evidence always goes out with the ESA50.

[Guest]

Agreed RaeUK, I have read it over a few times. They ask we send...I don't know why we wouldn't if we want to support our claim. Am not seeing anything new in the new regs.

[estellyn]

You may well be right, but I would point out that a Tribunal looks at the whole claim/case from scratch. They aren't interested as to what you sent, when and to whom, what they are interested in is what has been sent to them.

 

 

Actually they are. Evidence that is provided before an ATOS report giving a contradictory view, calls the ATOS report into question. Lots of judges are very concerned about the timeline of things, and far prefer evidence provided at the time of the ESA50 or ATOS assessment, than a letter or report by a doctor dated 2 weeks before the Tribunal. When you're talking about Tribunals now being 8-12 months after the WCA decision, some judges will question the relevance of later evidence, and if the evidence is dated much earlier, will ask why it wasn't provided earlier.

 

Proactively getting evidence prepared - letter or report by doctor at dated around the time of the WCA stands up much better when dealing with an improving or worsening condition.

[Zarbafi]

Wow, a lot of debate on this while I was gone! Thank everyone for your response and I'm very sorry to hear about your experiance Cleaver. I must say that I have had my own experiance of ATOS not even glancing at my ESA50 or supporting evidence which meant my interview was delayed as I wasut down to see a nurse when my health conditons requires I see a doctor. Even then the assessor did not read my file so I do understand what Cleaver means but as long as it is not harmful to my claim then I think it is better to put everything in that you can judging by the advice here. This time I included the ESA50 (filled out with help from a CAB advisor), hospital appointment letters, a personal account of my illness, the one medical report I have (not for my main issue) as well as NHS information about my illness. Will have to wait and see if it does me any good!

 

The only think I didn't do was to request access to my medical files (never thought of that) or to get a report from my GP or consultant. This was mainly as I didn't want to make a nuisance of myself to them, if I have to go to appeal then I will try and do this although I don't know how supportive they would be.

 

I am sure that as claiments become more and more informed about how to go through the process of ESA the DWP and ATOS will continue to up the ante and find more and more spurious reasons to deny the sick and disabled the benefits they need to survive.

[Guest]

as I said in an earlier post, I expect from my own experience and those of others, that atos/dwp more try to ignore, lose, etc rather than effectively find out for themselves, and no where can I see anything that states they have to...the forms request whats requested and we supply it, ignored or not, its evidence that can be used to show their failure, if we didn't supply it in the first place, it seems to not help ourselves at all. if they ignore they can be called to question on it, as with errors of judgement, albeit by tribunal....but how can they reconsider with not all evidence. I have no intention to aggravate a situation and will continue to comply and send in evidence and deal with the outcome the best I can. I am sure that if evidence plus the claimants statements of how illness affects them, is or continues to be ignored by Atos, then they will end up in the same position as the dwp (criticized for not doing job properly) and will themselves be called further into question than they already are.

 

always going to be a long hard battle, but they give us evidence of their uselessness by not being fit to understand, equate ours.

 

I seriously doubt that tribunal read all the cases notes etc on the morning of the tribunals, they start at 9.00 and run all day, in my area, and some cases are complex, some tribunal sessions running over time, last minute evidence isn't the best way to go IMO as it could look like awkwardness by the claimant if this evidence was there from the start, and also that the claimant has submitted an incomplete evidence in order to be assessed in the first place.

 

I just prefer to do my part fully and then if they don't do theirs, go after them in whatever way is possible. we know they don't play fair, but we are in a better place with all the campaigning and even now MP's from all parties questioning the fitness of Atos, this is far from the situation in 2009 when it happened to me, nobody but CAG was interested ....it is likely going to happen again this year and very soon to me ,but I am prepared this time.

[Guest]

from April when the new appeals systems begins, I would refrain from sending in any new evidence during the reconsideration by dwp, hopefully bringing the waiting time to the minimum and then on sending to the tribunal directly myself...supply new evidence if I had any, at that point. If they are not paying whilst in reconsider I don't see we would have any choice on that bit. but I wouldn't leave it to anywhere near the tribunal date.

 

I have heard that if the tribunal has enough evidence to see that one side has enough evidence to win hands down they can strike it out, so if a claimant supplied the new evidence early on the could have it sorted out more quickly. am thinking of doing a benefits advice course.

[Invalidation]

The more information sent in to ATOS the better, then if they refuse you or you go to appeal you can always point out that you sent in a full and complete description of your disability and how it affects you, and ATOS/DWP have simply ignored it.

[Guest]

I agree as things are now, about new evidence after the initial form filling and decision, but am concerned about the changes from April with this new mandatory reconsideration period possibly without any benefit paid during it, and no guide as to the timeline, with benefit only being paid again once the claimant has themselves sent it to tribunal, it would seem quicker to keep the new evidence to go with the tribunal paperwork.

[cleaver]

Unfortunately, none of that actually supports your contention that claimants shouldn't send supporting evidence.

Quite the reverse. A request to submit supporting evidence always goes out with the ESA50.

 

There is a whole world of difference between what the DWP would like us to do (they may ask) and what the DWP REQUIRE us to do (in accord of the legislation)

 

There is absolutely no legal requirement for ATOS or the DWP to ask you to send in any documentation UNLESS they have put you on notice in accord with the legislation.

 

Of course you can volunteer to send anything in, I'm not saying that you shouldn't, but please remember that it is not a requirement.

 

You are quite right in what you quote, but I would point out that up until March 2011 the covering letter that came with the ESA50 specifically stated that you should NOT send any evidence in! The law has not changed in this regard, but what has changed is that the ATOS & DWP in wanting to clean up their act and to stem the number of their decisions being overturned which was a media nightmare for them, are now asking nicely if you will help them out of the hole they are in by being so ever good as to deliver all of the evidence to them instead of the Tribunal Service.

 

It still does not remove the responsibility as to who is to obtain the evidence. ATOS/DWP have that responsibility under the legislation.

[cleaver]

Agreed RaeUK, I have read it over a few times. They ask we send...I don't know why we wouldn't if we want to support our claim. Am not seeing anything new in the new regs.

 

There is a difference between being asked to volunteer the information and being required to send the information.

 

People seem to think that you are 'duty bound' to send the evidence in - you are not unless the DWP have put you on notice to supply it.

[cleaver]

Agreed RaeUK, I have read it over a few times. They ask we send...I don't know why we wouldn't if we want to support our claim. Am not seeing anything new in the new regs.

 

Just as long as people are aware that they are under no requirement legally to do so!

[Nystagmite]

You may not be duty bound; but common sense would suggest that you send as much information in as possible.

[Guest]

this is too ridiculous now....am done

[cleaver]

Actually they are. Evidence that is provided before an ATOS report giving a contradictory view, calls the ATOS report into question. Lots of judges are very concerned about the timeline of things, and far prefer evidence provided at the time of the ESA50 or ATOS assessment, than a letter or report by a doctor dated 2 weeks before the Tribunal. When you're talking about Tribunals now being 8-12 months after the WCA decision, some judges will question the relevance of later evidence, and if the evidence is dated much earlier, will ask why it wasn't provided earlier.

 

Proactively getting evidence prepared - letter or report by doctor at dated around the time of the WCA stands up much better when dealing with an improving or worsening condition.

 

I'm sorry, but you appear not to fully understand the legal procedures.

 

It doesn't matter to a Tribunal if Father Christmas popped the evidence down the chimney of the Tribunal Service's offices 14 days before the hearing date. They are there to evaluate all evidence submitted to them and are not required to assess why it wasn't sent to the DWP beforehand, or handed in at the ATOS assessment.

They may ask and your answer could be that you simply didn't trust ATOS or the DWP to give the evidence due consideration.

 

It's rather strange that it was because evidence was being sent to the Tribunal and not to the DWP or ATOS that so many decisions were being overturned. So ATOS/DWP now ask since March 2011 nicely if you wouldn't mind sending it to them first. There one and only reason for this change of heart is that they were being slated for making poor decisions in the National Press and in Parliament - it is simply a damage limitation exercise and has nothing to do with 'helping the claimant out'.

[cleaver]

Wow, a lot of debate on this while I was gone! Thank everyone for your response and I'm very sorry to hear about your experiance Cleaver. I must say that I have had my own experiance of ATOS not even glancing at my ESA50 or supporting evidence which meant my interview was delayed as I wasut down to see a nurse when my health conditons requires I see a doctor. Even then the assessor did not read my file so I do understand what Cleaver means but as long as it is not harmful to my claim then I think it is better to put everything in that you can judging by the advice here. This time I included the ESA50 (filled out with help from a CAB advisor), hospital appointment letters, a personal account of my illness, the one medical report I have (not for my main issue) as well as NHS information about my illness. Will have to wait and see if it does me any good!

 

The only think I didn't do was to request access to my medical files (never thought of that) or to get a report from my GP or consultant. This was mainly as I didn't want to make a nuisance of myself to them, if I have to go to appeal then I will try and do this although I don't know how supportive they would be.

 

I am sure that as claiments become more and more informed about how to go through the process of ESA the DWP and ATOS will continue to up the ante and find more and more spurious reasons to deny the sick and disabled the benefits they need to survive.

 

I can't add anymore to that. You have described a typical ESA journey.

 

I wish you all the best in your claim.

 

what annoys me is that people on here are saying that 'the burden of proof' lies with the claimant - it doesn't, unless you are placed on notice by the DWP.

As for the antics of ATOS and the DWP, yes i will agree entirely - they are always 'improving' the ESA procedures which 'accidentally' have the effect of removing more and more people out of ESA. The recent changes are a typical example.

[cleaver]

from April when the new appeals systems begins, I would refrain from sending in any new evidence during the reconsideration by dwp, hopefully bringing the waiting time to the minimum and then on sending to the tribunal directly myself...supply new evidence if I had any, at that point. If they are not paying whilst in reconsider I don't see we would have any choice on that bit. but I wouldn't leave it to anywhere near the tribunal date.

 

I have heard that if the tribunal has enough evidence to see that one side has enough evidence to win hands down they can strike it out, so if a claimant supplied the new evidence early on the could have it sorted out more quickly. am thinking of doing a benefits advice course.

 

That is exactly what I suggested happens when the new re-consideration rules come into force. Why extend the period by sending evidence in, giving the DWP the option to increase the time it will take to get the benefit back into payment. Under the new rules it will be the least sent is the best advice, get the benefit up and running again and then send the evidence in to the Tribunal at least 14 days before the hearing date (as they ask you to).

[cleaver]

The more information sent in to ATOS the better, then if they refuse you or you go to appeal you can always point out that you sent in a full and complete description of your disability and how it affects you, and ATOS/DWP have simply ignored it.

 

And the Tribunal Service will say - Yes? and?

 

The tribunal will hear and read all of the evidence - it matters not when, how, why, what happened before.

[estellyn]

I'm sorry, but you appear not to fully understand the legal procedures.

 

It doesn't matter to a Tribunal if Father Christmas popped the evidence down the chimney of the Tribunal Service's offices 14 days before the hearing date. They are there to evaluate all evidence submitted to them and are not required to assess why it wasn't sent to the DWP beforehand, or handed in at the ATOS assessment.

They may ask and your answer could be that you simply didn't trust ATOS or the DWP to give the evidence due consideration.

 

It's rather strange that it was because evidence was being sent to the Tribunal and not to the DWP or ATOS that so many decisions were being overturned. So ATOS/DWP now ask since March 2011 nicely if you wouldn't mind sending it to them first. There one and only reason for this change of heart is that they were being slated for making poor decisions in the National Press and in Parliament - it is simply a damage limitation exercise and has nothing to do with 'helping the claimant out'.

 

How many Tribunals have you been to? How many statement of reasons have you read by Tribunal chairs, how many Tribunal cases have you prepared?

 

I have seen judges decide that a medical report dated months after a WCA or DLA decision is irrelevant as they cannot be sure it pertains to the appellant's condition at the time of the initial decision. Whether YOU choose to send a copy of medical information or a personal statement with an ESA 50 is entirely up to you. But there are definate benefits in aquiring the reports around the time of the assessment, or as close to it as possible. Whether you send them? I don't see anything lost in sending copies of reports or personal statements, and everything to gain in arguing an appeal case. Part of arguing an ESA appeal is discrediting the ATOS assessor's report and judgement. Pointing out evidence that was provided and completely ignored is a good way to do this. Pointing out that that the assessor has written something completely contradictory to the provided written evidence is a great way.

 

But of course I don't fully understand the legal procedures, only having prepared or attended hundreds of Tribunal cases with an excellent success rate.

[cleaver]

I agree as things are now, about new evidence after the initial form filling and decision, but am concerned about the changes from April with this new mandatory reconsideration period possibly without any benefit paid during it, and no guide as to the timeline, with benefit only being paid again once the claimant has themselves sent it to tribunal, it would seem quicker to keep the new evidence to go with the tribunal paperwork.

 

Absolutely agree!!!

[cleaver]

You may not be duty bound; but common sense would suggest that you send as much information in as possible.

 

Common sense to those that believe that ATOS will play fair and that the DWP will carry out their duties in accordance with the legislation.

 

For the rest of us that know differently and have first hand bad experiences, the Tribunal Service seems to be the one and only place that you will receive a fair hearing.

[honeybee13]

Is it me or do we seem to be going round in circles here?

 

Zarbafi, this your advice thread. Do you think you have enough information to make a decision or do you have other questions?

 

My best, HB

[cleaver]

How many Tribunals have you been to? How many statement of reasons have you read by Tribunal chairs, how many Tribunal cases have you prepared?

 

Personally for my wife and myself - 7 in the past 4 years. Wife - DLA (1) AA (3), Self - Pension Credit (1) IIDB (2). With 1 due later this year for IIDB (in respect of a decision made in 2004) & 1 due next year for ESA (self). Then in January 2014 there is a review of my IIDB & in May 2014 there is a review of my wife's AA claim both of which will probably go to a Tribunal.

 

I have seen judges decide that a medical report dated months after a WCA or DLA decision is irrelevant as they cannot be sure it pertains to the appellant's condition at the time of the initial decision. Whether YOU choose to send a copy of medical information or a personal statement with an ESA 50 is entirely up to you. But there are definate benefits in aquiring the reports around the time of the assessment, or as close to it as possible. Whether you send them? I don't see anything lost in sending copies of reports or personal statements, and everything to gain in arguing an appeal case. Part of arguing an ESA appeal is discrediting the ATOS assessor's report and judgement. Pointing out evidence that was provided and completely ignored is a good way to do this. Pointing out that that the assessor has written something completely contradictory to the provided written evidence is a great way.

 

I agree about medical reports dated well after the decision date. I am specifically talking about evidence that is/was available at the date the decision was made relevant to when the claim was made.

You are wrong, you have to discredit the DWP's decision using 'relevant' and 'timely' evidence. Whether that evidence has been seen already by ATOS or the DWP matters not.

 

Your job at a Tribunal starts with a Submission that attempts to discredit the evidence that the DWP has sent in using written evidence. Call it a 'paper argument'.

 

 

But of course I don't fully understand the legal procedures, only having prepared or attended hundreds of Tribunal cases with an excellent success rate.

 

Then you should know that it doesn't matter if Cameron, Clegg or Osbourne has seen/not seen your evidence - what matters is that the Triunal panel see it.

 

I am only pointing out what the law requires NOT what the DWP or any other party would like to see happen.

[cleaver]

Is it me or do we seem to be going round in circles here?

 

Zarbafi, this your advice thread. Do you think you have enough information to make a decision or do you have other questions?

 

My best, HB

 

Thanks HB, I have attempted to distinguish for the benefit of the OP exactly what the law says and what the responsibilities of the claimant are. A balanced view point.

[honeybee13]

Thanks HB, I have attempted to distinguish for the benefit of the OP exactly what the law says and what the responsibilities of the claimant are. A balanced view point.

 

Indeed you have.

 

There has been a range of views expressed and I hope this will help Zarbafi reach an informed decision.

 

HB

[worried33]

I sent letters stating how my disability affects me in the case of work and adjustments needed, etc. I got into the support group without a face to face.

 

So yeah, it is worth doing.

 

This I think backs up what I am thinking.

 

There is dumb evidence and smart evidence.

 

If you send in evidence that is specifically linked to the descriptors and explained in the right words ti will be much more effective than simply handing in a 40 page dossier on your entire medical history. I actually think there is such a thing as too much evidence and if the evidence is overwhelming then like I said in an earlier post there may simply just skim over it or ignore parts of it altogether.