A few questions about the interview notes for my ESA Appeal. - ** WON **

[**Margaret**]

:Teej75:

 

Yes, if by 'client interview notes' you mean the ESA85 report from Atos. And :honeybee13:'s submission template is an excellent guide to rebutting the err... err... 'mistakes'.

 

The most important part of a tribunal submission is to explain how the effects of your conditions impair your ability to perform or not, prescribed activities known as descriptors, that are relevant to the workplace. Employment n support is about whether the disabling effects of a condition meet the legal criteria for an award.

 

Hopefully your doctor will write a supportive letter which needs to address how you're affected by your issues rather than just confirming your diagnoses. If s/he's less than enthusiastic, put in an immediate subject access for your medical records. A tenner gets everything that's on the computer and there may be a useful report from a specialist. A statement from a carer about the help you need; a lift to the doctor cos you can't walk to the bus stop, encouragement to get showered and dressed, or whatever, can be useful.

 

Best wishes, Margaret.

 

Like everything else Atos related, the ESA50 simply isn't fit for purpose. If there's a next time, forget the tick boxes. Write about how your conditions affect day to day life. As you're going to for this tribunal.

Edited October 10, 2013 by **Margaret**

[**Margaret**]

:Teej75:

 

Officially, evidence needs to be submitted by ten days before a hearing. In practice, it's become whether the tribunal panel have time to read a late submission, even one that's handed in on the day, just before the hearing. They have to accept all evidence that's offered, and cos of the pressure on the Tribunals Service, adjournments are a last resort. Fourteen days between Citizens Advice and your hearing? You should be alright anyway, and you can save a couple of days by sending your paperwork directly to the tribunal venue.

 

Unless you've a genuine emergency (bereavement or hospital admission) don't even consider trying for a postponement cos you don't feel ready. At this stage, the most likely outcome will be a decision on the papers.

 

My personal opinion is to send everything to Atos/Jobcentreplus/the Tribunals Service via recorded delivery if you can afford it. Or at least get a free certificate of posting. Being able to prove the form/letter was sent, or even better that it got there (cos you can prove they've lost it) has got me out all sorts of trouble in the past! Including an alleged 'failure to attend', nine months after the non event!

 

Best wishes, Margaret.

Edited November 6, 2013 by **Margaret**

[**Margaret**]

:Teej75:

 

Umm...... Where do you live that you've got a choice between Citizens Advice n Welfare Rights? You don't have to answer but one lot needs to move to the East Midlands please. Umm...... x 2. It's etiquette for advisers not to tread on each others toes, n I'm reluctant to tread on their toes. And of course, it's impossible to offer an opinion on your evidence, and the recommendation for postponement, over an internet forum. Some comments on what you've written and answers to some of your questions.

 

First off, I suggest you look at the applicable criteria for an award of employment n support. From your previous threads I think your decision date was probably after 28 January 13? Which means the claimant's inability to perform physical descriptors must arise from bodily disease or disablement and problems with mental function must arise from mental illness or disablement. As you had an 03/11 questionnaire the applicable descriptors are at the end of;

 

http://www.meassociation.org.uk/wp-content/uploads/2011/05/A-guide-to-ESA-WCADWP-June-2011.pdf.

 

I know this is horribly complicated, not least cos many conditions give rise to physical and mental symptoms. A second opinion may help your health issues but I doubt it'll sway a tribunal panel. They'll say you 'led' the doctor.

 

There may be something useful in your medical records. A tenner gets everything that's on the computer. You'll probably have to pay extra for copies of clerical records.

 

A witness statement from someone who knows you may be useful so long as it explains what you can't do and the help you need cos of physical or mental disablement.

 

Is there any chance that your general practitioner may be of the opinion that being found fit for work would be a risk to your health? Or, if one diagnosis is anxiety, that he would be prepared to complete an evidence sheet like the one on Rethink's site?

 

http://www.rethink.org/living-with-mental-illness/money-issues-benefits-employment/work-capability-assessment

 

If you were awarded employment n support with the work related activity component, you could be sanctioned for non compliance with reasonable activities to prepare for work. For now, the work related activity group can't be mandated to apply for/take up a job or work experience.

 

By my reckoning it's six months since your disallowance. Should your appeal be dismissed or withdrawn; if you're eligible for an income related award, and your doctor's prepared to continue writing Med 3 (unfit) notes, you can make a brand new claim for employment n support

 

Sincerely, Margaret.

Edited November 8, 2013 by **Margaret**

[**Margaret**]

:Teej75:

 

Your current adviser is best placed to know the mood of your local tribunal judges about late postponements. If it's the option you feel comfiest with there's nothing to lose by asking. Needs a written request to your tribunal support centre and the decision is made by one of the judges. Worst s/he can do is say 'no' which leaves you with the options of a paper hearing or turning up as arranged.

 

You're right, the most persuasive evidence at your last appeal hearing would have been you. Stats show that appellants who turn up are twice as likely to get an appeal upheld than those who don't, so you've nothing to lose by turning up next week if you can't get a postponement. I really feel for you with all this. It's absolutely devastating for someone who's been in receipt of benefits cos of disability for n years to suddenly find they may have lost entitlement cos the rules have changed.

 

For your info, the two routes from the work related activity group to the support group are;

 

An upheld appeal against a Jobcentreplus decision of limited capability for work.

 

A new decision (supersession) from Jobcentreplus when a deteriorating condition or a new condition, further restricts capability for the descriptors, or increases risks to health, or allows a claimant to be treated as having limited capability for work related activity.

 

Make your mind up time, best wishes, Margaret.

Edited November 9, 2013 by **Margaret**

[**Margaret**]

:Teej75:

 

If you lose this appeal you can reclaim employment n support allowance immediately, if it's six months from the date of the original fit for work decision. For any condition (physical or mental) that your doctor's prepared to write Med 3 (unfit) notes for. But looking at your previous threads you're unlikely to have enough national insurance contributions for an award based on them, and eligibility for an income related award will depend on whether you, or a partner, have other significant income or savings above £16,000.

 

Think you've misread part of what I've written. I've outlined the two possible routes for transfer from the work related activity group to the support group, but there's no way I can even guess at whether you meet the legal criteria for an award of either component.

 

You're right that the tribunal panel will only consider your capability for work on the date of the decision. Doesn't matter what's happened since unless it's subsequent evidence that confirms capability, or lack of it, at the date of the decision.

 

Margaret.

[**Margaret**]

:Teej75:

 

If I've sussed correctly; the decision under appeal was made on or after 28 January 13 following a work capability assessment, and completion of an ESA50 about three months earlier. A very basic summary of the criteria applicable to your appeal;

 

The descriptors are the ones I've linked to in #13,

 

You can only score points from physical descriptors that arise from bodily disease or disablement and from mental descriptors that arise from mental illness or disablement.

 

Or you can be treated as having limited capability for work, if you can show that work would constitute a substantial risk to the health of yourself or someone else.

 

Yes, you need to get supportive evidence from doctor/medical records, another professional who's involved in your care, a carer/flatmate, about how your conditions affect day to day life. Is the breathlessness that stops you walking round a supermarket consistent with your cardio problems? Dou you need a chaperone to the doctor to keep you safe if you have a panic attack?

 

Traditionally tribunal members have kept out of the Tatos debate but more recently there's been some barbed comments sent back to Jobcentreplus. The template submission in CAG's guide to appeals, is an ideal format for a submission to discredit that error strewn ESA85 and explain why you believe you should be awarded employment n support.

 

Hopefully, what I've written will help you to make an informed decision about whether to try for a postponement. If you're knocked back you've nothing to lose by preparing as best you can for your scheduled hearing. Are you taking a friend/partner for moral support? S/he won't be allowed to speak for you but they may be asked if they've any comments to add to your oral evidence.

 

Sincerely, Margaret.

Edited November 11, 2013 by **Margaret**

[**Margaret**]

:Teej75:

 

'I've written the descriptors out.' Are Citizens Advice still writing up your appeal submission from your paragraphs? If not, use :honeybee13:'s template to do the best job you can, even if it's only sentences about where Atos got it wrong and why you meet the applicable descriptors. With some examples of the adjustments you have to make, day to day, for your limitations. It doesn't have to be a copperplate submission. Having thought about how your diagnosed conditions affect you will help you to answer the panel's questions.

 

One the day, arrive in very good time and take three copies of your evidence with you. Tribunal venues vary in the amount of photocopying they're prepared to do and panel members have more time to read if they're not waiting for photocopies or sharing.

 

During the hearing, don't try to shoehorn your answers into a nearest match tick box format or the legal technicalities. Most tribunal panels are well used to flustered go-it-alone appellants, so just be yourself and explain how it is for you. And whilst there's exceptions to every rule the video below is typical of the tribunals I've been to as moral support. #23 of;

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?386694-resuming-esa-after-atos-assesment

 

Margaret.

Edited November 20, 2013 by **Margaret**

[**Margaret**]

:Teej75:

 

Fraid I'm not going to be much use here.

 

Cos of the pressure on the Tribunals Service my guess (but it's only a guess, I've no professional experience) is that problems with representation will only be grounds for adjournment if the judge decides that to hear the case on Thursday isn't fair play. Tribunal panels have an over riding objective to deal fairly and justly with an appeal. And speaking as I've personally found, most of them do.

 

Fingers crossed, Margaret.

 

(Jobcentreplus should have requested info from your doctor? Don't think we know. Currently, for claimants with mental health problems, the issue's in the Court of Appeal.)

[**Margaret**]

:Teej75:

 

It's really hard to be told, after n years on incapacity benefit, that you're fit for work and there's little professional help for an appeal. Happened to a close friend of mine. Which led us to CAG. So pleased we could help you land your entitlement.

 

Hopefully, without the distraction of an appeal, you'll now be able to concentrate on that second opinion for a diagnosis and appropriate treatment. Or at least some support to manage your problems for the best day to day life you can have.

 

Take care, Margaret.

[**Margaret**]

:Teej75:

 

For you, initial work related activity will involve work focused interviews with an adviser at the Jobcentre to discuss what you can do to prepare for work. Updating your curriculum vitae, training, voluntary work, but you can't be mandated to apply for a job or undertake work experience. Neither, with a twenty four months prognosis (whenever it dates from) can you be mandated to the work programme.

 

Unless you're 110% sure you meet one of the descriptors for the support component I'd forget it. First tier tribunal decisions can only be appealed to the upper tribunal if the decision or the reasons for it contain a legal error. Usually needs professional representation, takes for ever and there's no assessment rate employment n support pending the outcome. There's some info about the statement of reasons, which it's worth getting anyway, and errors of law at;

 

http://www.disabilityrightsuk.org/appealing-upper-tribunal-against-first-tier-tribunal-decision

 

Should your condition(s) worsen or you find you can't cope with work related activity, an easier and safer option is to ask Jobcentreplus for a new decision about your capability for work related activity.

 

A few upheld tribunal decisions are processed within six weeks, most take far longer. If you feel you've waited too long, it's worth checking Jobcentreplus haven't lost their copy of the decision.

 

Margaret.

Edited November 27, 2013 by **Margaret**