ESA Tribunal - **WON **

[MooNboo]

Hi All

 

With my appeal looming in December I am just a little concerned that I am not clear on one of my descriptors or one that is gonna be play against me..

 

When we went to the assessment the place I could park thecar was in my view just under 200m, yet it took about 20 minutes with 4 stopsdue to pain and discomfort...

 

Can someone clarify that wouldfall in to this categoryof this descriptor

 

 

Cannot either:

 

 

 

(i) mobilise morethan 200 metres on level ground without stopping in order to avoid significantdiscomfort or exhaustion;

 

 

 

or

 

 

 

(ii) repeatedlymobilise 200 metres within a reasonable timescale because of significantdiscomfort or exhaustion

 

 

 

Yet when wementioned these facts,all she was interested in that we had come by car...bigdeal as the assessment centre is on a main route into a town with no drop offpoint, so I question is this a set up by Atos.. even the bus station is aboutthat same distance..

 

 

And yet it could be argued that someone whocame by train and bus would of had to walk more that a total of 200meters toget to the centre...

 

Yet when the ESA wrote to me after the assessment they used some phrase that my mobility would improve with the use of a mobile wheel chair... talk about cop out or what

[Nystagmite]

It's important to note repeatedly. Ok, so you may have had to mobilise 200 meters+; but did you have to stop? Was it painless? Were you able to do it again?

 

With mobilising, they also talk about using aids - mannual wheelchair, crutches, walking frame, etc.

[MooNboo]

Hi Nysagmite.

 

No it wasn't painless ... stopped four times because the pain was getting to much....and after a few minutes of standing still / leaning against a pillar /wall when the pain dissipated to a acceptable level I then carried on

[Nystagmite]

You also have to explain why it's not possible for aids to be used. You won't score points because you can't walk. You'd only score points for that descriptor if aids can't be used. IE, you had arthritis in your arms too, which would make mobilising difficult.

[MooNboo]

If a consultant that's been treating me recommended such aids then I would have used them but even after the ATOS assessment I spoke with one of the consultants and he nearly fell of his seat laughing at the comments about a wheel chair...

 

End of the day the medical professionals of the NHS have been treating me.. not ATOS or the DWP

[**Margaret**]

:MooNboo:

 

Activity 1 is about mobilising with any aids that can reasonably be used including a manual (self propelled) chair. 200 metres in 20 minutes isn't a reasonable timescale and doesn't suggest any reasonable repeatability but you'll need to explain why a manual chair wouldn't improve your mobility. Either you've been encouraged to walk for as long as possible to maintain function, or you wouldn't be able to propel an manual chair cos of other problems, or you've nowhere to keep a manual chair.

 

Further guidance at;

 

https://www.gov.uk/government/publications/work-capability-assessment-handbook-for-healthcare-professionals

(Pages 67 - 78)

 

Activity 2 is about staying at a work station for 30/60 minutes, either sitting or standing or a combination of both by pretending to be a yo-yo. From your previous thread I presume you've a problem with disc degeneration. How long did it take you to drive to the assessment centre? You'll need to explain exactly how long you can stay at a work station for and why you may need to move away. Repeatability's really important for this descriptor. It's the only work specific descriptor and it specifies for the majority (more than 50%) of the time.

 

CAG has a guide to appeals at;

 

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

 

Thirty plus of Atos centres are inaccessible for chairs and about half have no safe drop off point or nearby parking. Their official answer to the accessibility problem is that they offer alternative assessment centres. Most of which are as useless as the default centre for mobility impaired claimants, and some mental health claimants, especially those who don't have a chaperone/chauffeur.

 

Best wishes, Margaret.

Edited December 1, 2013 by **Margaret**

[MooNboo]

Hi Margaret

 

Pretty well much screwed in my appeal then, don't see the point in going now to have someone tell me the DWP was right.... but then in hind sight, I am still in pain everyday, weather it being sitting for short periods or standing for short periods... find that laying on my back still helps.. My GP has been signing as not fit for work due to the pain and the fact my anxiety and depression is spiralling out of control is just something else I'm having to deal with.. yet all the time the DWP will maintain I am fit for work...

 

From what I gather from information on the super high way is if my appeal fails and I am still unwell for work then reapply for ESA

Edited December 1, 2013 by MooNboo

[**Margaret**]

:MooNboo:

 

Errr ...... Over an internet forum, none of us can predict the outcome of an appeal to an employment n support tribunal cos we can't know the point at which exhaustion and pain means you have to stop walking/wheeling, sitting or standing. Neither do we know the levels of pain relief you've been prescribed.

 

From what you've written, there's no way you can repeatedly walk 200 metres in a reasonable time if you had to stop four times. Cut off point is when significant discomfort or exhaustion means the activity has to stop. Which discs are affected? Problems with sitting sometimes indicate that a self-propelled chair isn't an option. Ideally, you need a medical opinion as to the suitability or otherwise of a manual chair.

 

In terms of productivity, the standing and sitting descriptors are ridiculous. In terms of employment n support allowance, if both standing and sitting are painful, time how long you can alternate between standing at a worktop to prepare food and sitting at a desk/table to use a computer before you have to move out of the kitchen to avoid lying on the sofa to relieve pain. Then consider the repeatability throughout an average working day! And the next day!! The descriptors refer to a work station, not reclining on the sofa with a laptop or watching telly. Do you have any problems with rising from sitting to standing?

 

Of course, it may be the case that the effects of your conditions aren't severe enough to meet the increasingly harsh legal criteria for an award of employment n support allowance, which courtesy of the ConDems have little if anything to do with capability for work.

 

Your upcoming tribunal will only consider your capability for work at the time of your assessment. Should your appeal be dismissed but you feel your mental health has deteriorated since then; yes, it's another turn on the misery-go-round if your doctor's prepared to continue writing Med 3 (unfit) notes.

 

Margaret.

[RaeUK]

... Pretty well much screwed in my appeal then ...

I'm afraid I don't follow your reasoning. From what you've said, you can't repeatably walk 200m. No problem. You then need to show why a manual wheelchair wouldn't help you. You said your consultant was amused at the very thought. So, clearly, there is a reason why you can't use a manual wheelchair. I assume this is down to your illness or prognosis - neither of which we on the forum are privy to.

[MooNboo]

Hi Margaret...

 

2 discs L5/S1 & L3/L4 both with bulges ...Pains running directly across the back at L5/S1 and radiating pains in to both left buttock.. and right buttock down to below the rear of my knee.. plus pins and needles in my right foot... so sitting lasts about 15 mins and standing for 10mins...

 

I find that doing the morning school run which takes 15 mins and I'm home after a 1hr of yo-yoing I find that taking medication and laying flat on my bed for a few hours helps with the pain....but its no life when I got two children. plus the medication makes me feel wasted / spaced out a lot of the time, this is why I'm very cautious when and how much I take...

Getting up and down from a seated position is painful along with walking any distances, spend half my time up and down like a bloody yoyo...From the consultants & physio's I have been treated by have told me to keep as mobile as I can...

A stick isn't really going to offer me much support, a wheelchair wouldn't offer me much support in my lower back as it more of a stooping seated position...plus lifting it in and out of my car would cause more issue where as my back is concerned...

 

From what I recall one of my medical reports stated that issues with anxiety and high GAD score, which I'm told isn't good....and progressively my mental state has got worse since the assessment... no answering the phone or the door.... getting very angry over stupid things...out bursts at ppl and to cap it of getting all teary eyed and in floods of tears over something on TV......

[RaeUK]

^^^ that, m'dear, is all you have to show. And if you have any written supporting evidence from your consultants etc then even better.

Good luck on the day.

[MooNboo]

Then on the flip side does it matter if I did win the appeal...Bloody ESA will only send me another ESA50 and get me to go to another ATOS medical... so its just on the merry go round of the ATOS & DWP

[Zonker]

I think use of aids has a qualifier 'reasonably'. As I understand it, if it isn't medically required , to high a cost, an item that isn't usually used for that condition or sufficient space to store the aid the it isn't reasonable to consider that aid.

 

 

ESA: use of aids and appliances section 9~13

 

 

http://www.dwp.gov.uk/docs/m-24-12.pdf

 

 

Examples are given towards the beginning of that document.

 

 

Upshot of it is just because some brain dead zombie thinks you can use a wheelchair , DWP DM has to decide if its reasonable. Otherwise everyone with mobility problems would be passed as they would all be assessed as using an electric mobility scooter thing.

Edited December 2, 2013 by Zonker
details

[MooNboo]

I have a question

 

If I put in a new claim and get awarded 0 points again by the DWP... should I appeal do they still pay the appeal rate whilst you wait for the tribunal or have they stopped that now

[Nystagmite]

They don't pay the appeal rate whilst it's going to reconsideration, which happens before appeal.

[**Margaret**]

:MooNboo:

 

'Pretty well much screwed in my appeal then,' We can't predict you'll win this appeal, but from what you've written there's nothing to suggest you won't either.

 

Twenty minutes to walk 200 metres with four breaks for pain doesn't suggest reasonable time or repeatability. I don't know whether weight bearing walking aids are appropriate for you but, if you've been advised to keep mobile, a chair isn't. Do you use the furniture for support around the house? Explain who does the supermarket run or that you have shopping delivered.

 

You may have got to Atos and 'sat for n minutes without apparent discomfort' but how many days did it take to recover? A need to lie flat for several hours after getting the kids off doesn't suggest much reasonable repeatability either. But you'll need to explain how you manage teatime, shower, and bed. Keeping a pain diary for a few days may help to quantify exactly what you can manage. If it's supportive of your claim, include it with your evidence.

 

Was the high anxiety score around the time of your assessment? If so, ask for a copy. And praps your psychologist will write a supportive report or complete an evidence sheet like the one on Rethink's site;

 

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

 

Your frustration with your limitations and the flawed system is very evident from what you've written. But if you want state support you'll have to jump through the hoops to get it, just like the rest of us. I've been in the middle of a work capability assessment for eighteen months!

 

Best wishes, Margaret.

Edited December 2, 2013 by **Margaret**

[**Margaret**]

:Powered Aids:

 

Atos assessors and Work n Pensions decision makers have to disregard powered mobility chairs and scooters. Activity 1 of a work capability assessment is about how far a claimant can get without a powered mobility aid or assistance from another person. Also, the standing and transferring between seats parts of activity 2 have to be done without assistance from another person.

 

There's no case law or guidance (that I'm aware of) about whether a claimant has to be capable of operating adjustable office chairs and desks without assistance.

 

Margaret.

Edited December 2, 2013 by **Margaret**

[MooNboo]

The day is almost upon me

 

Wonder what tribunal is really like, I mean they show you this clip on Utube, whilst quite a few ppl on here have commented on how rude and unhelpful they have been, if they wanna behave like that with me then I'm just gonna walk out

 

I really don't hold my breath with the appeal, to many doubts, I mean I filled in the ESA50 and it would seem that the DWP told Atos what to look into which is all wrong, report full of rubbish that's been twisted and turned around .....reckon it will either be adjourned and another hearing or thrown out.... Hey but its been 6 months since the original decision, so it might just be a cause of making a new claim on Wednesday

[abc123def]

I've been to severa tribunals and have always found the panel fair and kind

[antone]

Most people here report that the Tribunal members are pleasant, interested in hearing what you have to say, and make a fair decision. Granted, we've seen a couple of cases of them being nasty, but that's the exception. I'd advise going in with an open mind and don't assume that they're out to get you.

[honeybee13]

The day is almost upon me

 

Wonder what tribunal is really like, I mean they show you this clip on Utube, whilst quite a few ppl on here have commented on how rude and unhelpful they have been, if they wanna behave like that with me then I'm just gonna walk out

 

I really don't hold my breath with the appeal, to many doubts, I mean I filled in the ESA50 and it would seem that the DWP told Atos what to look into which is all wrong, report full of rubbish that's been twisted and turned around .....reckon it will either be adjourned and another hearing or thrown out.... Hey but its been 6 months since the original decision, so it might just be a cause of making a new claim on Wednesday

 

Hello again. Here is a link to your main thread in case it helps anyone.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?411265-ESA-Tribunal&p=4412987#post4412987

 

I think you're being more negative than you need to be. I told the story of my own tribunal in the stikky that starryeyes posted on your thread and it was low key and civilised.

 

It's worth thinking positive because of what you stand to gain if they find in your favour.

 

Good luck, I'll be thinking of you.

 

HB

[MooNboo]

Hi all ...Its all over and done with

 

Infact it wasn't as daunting as I expected, both Judge and doctor where totally approachable, made thinks clear and happy with the direct answers I give, also let me have my say about the inconsistency's of the Atos report... They accepted that I had made an error on the ESA50 but was understandable as I was tripping on medication... Final result was 9 points for walking, 9 points for sitting and standing, recommendation to DWP that I be reassessed in 24 months .... weather DWP accept the recommendation is anyones knowing

[time4change2]

well done glad it all went ok xx

[honeybee13]

Hello again. You've done really well, I'm pleased for you.

 

Thank you for letting us know, I'll amend your thread title.

 

HB

[RaeUK]

Merry Christmas.