ESA Appeal Tribual Coming Up

[ep1987]

Obviously i'm quite stressed at the moment and would really appreciate some advice if anyone has experience with ESA Tribunals, specifically for social anxiety an depression.

 

I'm going to ask my GP if she can fill out an edited version of the Black Triangle Template (regulations 29 and 35, exceptional circumstances).

 

I'm also going to ask my CBT therapist for a summary of the probelms which my social anxiety causes and an explanation of how my symptoms formed.

 

I just put in an e-mail request for my medical records via FOA and i will also write a submission to accompany my evidence (explanation of my condition and an asertion that the ESA 50 is highly flawed when assessing mental health, hence the exceptional circumstances claim, plus concerns with the ATOS medical assessment which was very brief, questions were misleading, assessor attempted to feed me answers which would harm my case, written report twists my words to the point of falsity, thus i may actually be entitled to 15 points in any case).

 

On this front is there anything else i can do and are the steps i'm taking worthwhile (it really isn't ?

 

With regards to the actual assessment does anybody have an insight or any helpful links concerning the type of questions i might face with regards to an appeal based on social anxiey and depression? My symptoms became much more acute when my self esteem took a massive hit due to developing Crohn's disease and now the two tend to fuel eachother to some extent.

 

My dad will be taking me to the assessment and wants to sit in for support but the thought of this is making me ill. Situations in which my control is diminished cause extensive worry; plus i feel that his presence would affect my ability to concentrate and also lead me to downplay my symptoms.

 

I am however worried that appearing by myself will hurt my case as the ESA guidelines don't take into account people like myself who often do things independently to avoid having to talk to any other person (both during and before/after any event). Would it be allowed for him to be present for a portion of the tribunal (beginning i'm guessing would be best)? If not what would e my best course of action?

 

Finally is there anything else i should know or any other advice that might be useful?

 

Thankyou for any help.

[honeybee13]

Hello and welcome to CAG.

 

Other people know more than me about tribunals, but I do know that a tribunal chairman told my OH that it was better for me to appear in person and answer the questions. My OH was with me, but I answered the questions that the panel asked me. I had claimed for anxiety depression, which as you know you can't x-ray. Mental illness is harder to prove.

 

I'll post up a link to our forum stikky about tribunals with a template that you can submit to them with your reasons why you should be paid ESA.

 

My best, HB

[honeybee13]

Here's the link.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?251737-Appealing-or-going-to-a-Tribunal-Some-useful-information%281-Viewing%29-nbsp

 

HB

[ep1987]

Thanks

[abc123def]

ep, I was exactly the same as you in that the wording of the ESA50 implies the social difficulties to be if you cannot go out and about without someone whereas my difficulty was in meeting or seeing people I knew so would always go alone to places where I believed I would be unlikely to see anyone I knew so felt the wording was weighted against me and didn't fit my circumstances and I might not get any points. However the Doctor at the Tribunal totally got that, she definitely understood. The only problems I have ever had at Tribunals is non understanding by the disabled member of the panel, as invariably they have physical disabilites and they have been unable to understand the difficulties caused by mental illness. However the other two panel members and especially the Doctors have always been totally understanding. My advice to you would be for your Dad to accompany you to the Tribunal but to remain in the waiting room while you enter the room with the panel to answer their questions. That way you won't be hindered by his presence in there causing you to feel unable to be totally honest and open about your difficulties but he will be there to reassure you afterwards because if you are anything like me the tension and stress caused me severe anxiety and panic afterwards, even though the Tribunals have gone well.

It sounds as if you have done all you can, the most important evidence will be your verbal answers on the day. When is it? Let us know how you get on.

[ep1987]

Thanks for the support; the appeal is at the end of January.

[ep1987]

Elsewhere i was told that a tribunal may not take too kindly to a printed template citing reulation 29 filled in by my GP. I'm now leaning towards asking for a report but obviously this isn't going to be free and money is very tight. Does anyone have any advice?

[RaeUK]

I think it comes down to the quality of your GP and your relationship with him / her. I've never been charged for a GP report. Others have been.

I'm not surprised that tribunals etc may frown on what is clearly a template letter. Can you imagine how many they probably see?!

[estellyn]

I think it comes down to the quality of your GP and your relationship with him / her. I've never been charged for a GP report. Others have been.

I'm not surprised that tribunals etc may frown on what is clearly a template letter. Can you imagine how many they probably see?!

 

 

 

Yes, we had been using template questionnaires/reports for medical evidence for appeals, but the Tribunal Judges became quite....difficult at times about them - the GP's didn't like them much, either. So I started writing my own based on the client's individual circumstances and these were a lot more effective. So beware of using any templates for medical evidence.

[RaeUK]

Indeed, estellyn. When I was able to advise on the Bailiff forum I quickly discovered that some of the larger companies were receiving thousands of template letters a month. You can imagine how quickly their effectiveness waned! Instead, I looked at peoples circumstances, how that applied to the relevant sections of the template and wrote about that instead. The relevant sections were covered without the need to cite this, that or the other.

In the case of this OP, I would look at what regulation 29 entails, see how their circumstances dovetail with that and that is what they need to write about / have written by their GP. No need to quote the regulation as you've already covered it with personal experience.

[ep1987]

I was going to modify the template from the black triangle site to fit my own case but can definitely see that this could likely carry less weight as it appears that the GP may have filled it in as a matter of course.

 

I always get very nervous when asking people for things and when asking for a brief letter (which eventually totalled three sentences) from my previous GP (at the start of my appeal as i was paranoid about asking for a sick note on just my second meeting with her) i was too frightened to bring up the issue of cost and ended up having to deal with a rude receptionist who demanded £20.

[abc123def]

Often it is not the GP's decision whether to charge or not, it can be the practice manager.

[estellyn]

Indeed, estellyn. When I was able to advise on the Bailiff forum I quickly discovered that some of the larger companies were receiving thousands of template letters a month. You can imagine how quickly their effectiveness waned! Instead, I looked at peoples circumstances, how that applied to the relevant sections of the template and wrote about that instead. The relevant sections were covered without the need to cite this, that or the other.

In the case of this OP, I would look at what regulation 29 entails, see how their circumstances dovetail with that and that is what they need to write about / have written by their GP. No need to quote the regulation as you've already covered it with personal experience.

 

 

Exactly!

 

 

Then any argument about regulations can be made in the written submission and refer back to the GP evidence.

[**Margaret**]

:ep1987:

 

Burden of proof for regs 29 and 35 is on the appellant, and almost always needs medical evidence. However doctors (even the ones who agree to a patient's request for support) don't like being told what to write and tribunal panels view templates as the doctor being led by the claimant, which makes them worthless as evidence.

 

Far better is to;

 

Include a paragraph in your submission as to why being found fit for work/work related activity would constitute a substantial risk to your health. (Or the health of someone else.) It's important to identify the risk. What's going to happen if you have to claim jobseekers? Possible sanctions cos you can't cope, then aggravation of your Crohns cos of poor diet? Do you have a history of self-harm in response to extra stress?

 

Use the sample letter on the site below, but only as a guide, to follow :estellyn:'s advice about a personalised request for supportive evidence. If you decide to use any evidence supplied by your doctor, include a copy of the request in your paper work for the tribunal.

 

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

 

Best wishes, Margaret.

[ep1987]

I'd like some advice on my letter of support from my CBT therapist. Basically i may have asperger's (scored highly on a test online) but the therapist isn't qualified to diagnose this. Is it worth mentioning that she recommended that i looked into getting a referral from my GP or would this just complicate my case which is based on social anxiety and depression?

 

Thanks for any help.

[reallymadwoman]

From the title of your thread I assume you've had an ATOS assessment and not scored enough points to be awarded ESA?

 

I wouldn't worry about your exact diagnosis, all the tribunal will be interested in is if you meet the criteria to be awarded ESA and that is based on your ability to do certain work related activities, not what your diagnosis is.

 

This is a link to the forum sticky on appeals http://www.consumeractiongroup.co.uk/forum/showthread.php?251737-Appealing-or-going-to-a-Tribunal-Some-useful-information. Have a read through, then come back with any questions you have. Ideally your letter of support needs to show where you score enough points to be awarded ESA.

[honeybee13]

Hello again.

 

I've merged your recent threads so that we don't end up with duplication and confusion. Please continue to post on this one.

 

HB

[ep1987]

Thanks.

 

Here is my current plan with regards to evidence:

 

1. I've got a supporting letter from my GP

 

2. Getting an in-depth letter from CBT therapist tomorrow

 

3. I have my medical records on a disk (£10 well spent), will print out everything relevant (about 20 pages)

 

4. Will write a submission in two parts; the first section detailing how my condition became more acute and how it has affected my life over the last few years and the second outlining specifically where i disagree with the results of the assessment and giving reasons why i should have been awarded points for certain questions plus why the exceptional circumstances might apply.

 

In both parts i'll have references to the printed medical notes to substantiate my claim. Example; situation worsened in 2008, was referred by GP for counselling (1) but couldn't attend due to to crippling anxiety (2).

 

In footer: (1) See page 5 of medical notes, (2) See page 6 of medical notes

 

In the section where i dispute the findings of Atos i will also copy-in relevant upper tribunal findings which will show the flaws in the logic applied by the assessor, who was of course following company policy (travelled alone on bus therefore scores no points for getting about; this is not a valid argument as explained in the following decision...)

 

I will explain the length and detail of my submission as fear of not being able to put across my case verbally to its full extent due to my anxiety (which is the truth).

 

5. My mum is going to write a brief overview of my early developmental problems and how her own history of mental health problems affected my childhood and adolescence.

 

Is all of this too much?

 

I'm also terrified of being mandated to the work programme. This happened before when i was on jsa (was too ill to seek medical help and lost a lot of money through sanctions for non-attendance) as i simply couldn't attend a two week course with strangers in an unfamiliar environment. Thus i had to sign off for 13 weeks and was left with a food budget of less than £5 a week. Currently my weight is such that there would be a serious health risk should i lose any more than a few pounds. Is this worth mentioning? (really i should have made a subject access request to dwp so i could provide evidence of how unsuitable jsa was for me as i also signed off frequently for a short time when i couldn't face going in).

 

I suppose that i'm trying to show that i'm not ready for mandated work related activity at the moment which is true, but i know that 0 points to support group for mental health is a virtual impossibility. I suppose it just frustrates me that the wrag isn't actually there to provide the tailored support i need, rather it seems to exist so that a private company can profit frm making people's lives a misery or else the dwp sanction them instead for non-compliance (didn't attend, reason given; social anxiety as per esa award, decision; sanction). Of course this will be moot if i lose my appeal.

[abc123def]

Imo number 5 is not necessary, it is how your condition illness is affecting you at the time of the original assessment that matters, not really why especially for mental health. Most/many people have had troubled/difficult childhoods.

 

Getting the necessary points for the support group for mental health is not a virtual impossibility, I know many that have done so including myself. Your CBT therapist sounds like good evidence, hopefully the Tribunal will award you the time and space needed to access the therapy that will tackle your anxiety and enable you to engage at a later stage. You're doing really well, well done.

[**Margaret**]

:ep1987:

 

I agree that the tribunal panel won't be interested in your childhood, and you need to keep your condition history fairly short as well. Entitlement to employment n support will be determined by your capability, or lack of it, to get out of bed in the morning, get from A to B, and in the course of appointments, paying the bills, seeing family n friends, shopping, etcetera, interact with other people without behaving unreasonably.

 

Everything you write in your submission needs to be written with the descriptors in mind;

 

https://www.gov.uk/government/publications/esa214-a-guide-to-employment-and-support-allowance-the-work-capability-assessment

(Pages 10 - 12, 23 - 25, 27 - 28)

 

Be careful with the case law. By all means use it if your situation mirrors the case but don't use it just trash the ESA85. The tribunal panel will want to know why you believe you're entitled to an award of employment n support. They're already well aware of flawed Atos assessments. And if you do use case law, just cite the case. Tribunal venues keep copies of upper tribunal decisions.

 

If the stress of work related activity would exacerbate weight loss it's worth a mention. You'll need to explain what happened last time, sanctions etcetera, and it'll need confirmation from one of your medical professionals.

 

Best wishes, Margaret.

[lemony17]

Hi EP987,

 

I understand your worry, i was exactly the same. I had my Tribunal March, last year. I was in such a state that i was in tears by the time i arrived. I had at this stage been on ESA assessment level for 18 months for anxiety and depression. I thought i didn't have a hope. In fact i tried to cancel the weekend before as i did not have the evidence from my GP or therapist yet. They called me and strongly advised me to attend. I admit i was very lucky with the judge and the doctor i was assessed by BUT i was myself. They could see how distressed i was. I went on my own by the way. They asked me a few questions about my day to day life and gave me time to talk. My childhood experience did count to them. I told them little about it but i was about to start psychotherapy funded by an organisation relating to my childhood experiences. However, before i even mentioned that they said they were going to at least put me in WRAG. I ended up in the support group and am getting the help i have always needed.

 

Be yourself as you normally are, tell them how nervous you are. Don't try and minimise or save face. Tell your dad to wait outside if that's what you feel. I don't think they look to much on written evidence ( i didn't have any, though appreciate that's not usual). They want to see how you are.

 

Best of luck x

[ep1987]

Hi EP987,

 

I understand your worry, i was exactly the same. I had my Tribunal March, last year. I was in such a state that i was in tears by the time i arrived. I had at this stage been on ESA assessment level for 18 months for anxiety and depression. I thought i didn't have a hope. In fact i tried to cancel the weekend before as i did not have the evidence from my GP or therapist yet. They called me and strongly advised me to attend. I admit i was very lucky with the judge and the doctor i was assessed by BUT i was myself. They could see how distressed i was. I went on my own by the way. They asked me a few questions about my day to day life and gave me time to talk. My childhood experience did count to them. I told them little about it but i was about to start psychotherapy funded by an organisation relating to my childhood experiences. However, before i even mentioned that they said they were going to at least put me in WRAG. I ended up in the support group and am getting the help i have always needed.

 

Be yourself as you normally are, tell them how nervous you are. Don't try and minimise or save face. Tell your dad to wait outside if that's what you feel. I don't think they look to much on written evidence ( i didn't have any, though appreciate that's not usual). They want to see how you are.

 

Best of luck x

 

Thanks. I'm worried if i don't make a written submission that i will forget a lot of things and will feel rushed to give short answers as explaining things in detail will be more stressful. I'm going to try to keep my 'contextual' evidence as short as possible but i feel that i really need to mention the three descriptors which apply in writing.

 

I know i need to be careful not to trash atos but my assessmant was only 20 minutes of which only 2 or 3 were focused on mental health. Anything i mentioned which would help my case was omitted, some things i said were conveniently lost in translation ('i try to go out to the shops a couple of times a week when it's quiet and use the self service' became 'goes shopping on his own at least twice a week') and there were elements of complete fabrication (apparantely i have a strong social support network).

 

It also doesn't help that i filled in the form and attended the assessment in good faith, unaware that i needed to play the game. I do however have a good letter of support from my GP and will explain the specifics of my condition. I'm going to leave out the case law but i will make sure i mention things from upper tribunal rulings that apply to me (for example, i'll make sure to say that the only social contact i have with members outside of immediate family is in a professional setting), thus if the tribunal judge is up on his case law he should find in my favour, otherwise i'll at least have grounds for an appeal.

 

More than anything i just want this nightmare to be over; i want to be given the opportunity to continue with psychological help and begin to make steps in the right direction without being mandated to do things which i'm not ready for. I'm really not functioning at the moment outside of obsessing about the appeal and recently the resultant symtoms of anxiety and depression (ocd, predictive anxiety, inability to sleep, forgetfulness, poor concentration) are frustratingly leaving me less and less able to leave the house and get better.

[ep1987]

Got WRAG with a recommendation that i'm not re-tested for a year.

 

I guess now i just need a little guidance as to what to do now.

 

1. I'm going to request the tribunal's reasoning in writing. This should help if i'm re-tested contrary to their recommendation. Also it gives me the opportunity to appeal to the UT for support group if i think that an error of law may have occurred.

 

2. If i am sent another ESA50 i can attach the statement of reasons should emailing a complaint to ministers@dwp fail to work.

 

3. How long is it likely to be until i am called into the jobcentre?

 

4. I'm guessing that the prognosis is 12 months, how do i confirm this?

 

5. Who will decide what limitations will be noted down on my ESA agreement, how can i find this out and can i negotiate to ensure i'm not mandated to do anything i'm not capable of?

 

6. I'm sure that i saw a recommendation somewhere to have an up to date ESA50 filled in electronically; has anyone got a link with how to do this?

 

7. Anything else i may be entitled to or should know?

 

Thanks to everyone who provided assistance.

Edited February 1, 2014 by ep1987

[time4change2]

congrats on winning your tribunal glad it all went ok

 

the recommendation the tribunal gives you is not set in stone im afraid the DWP usually ignore the recommendations they get from the tribunals service i know People whoa have been sent another ESA50 with 3 months after winning there tribunal it all depends on when the DWP decide to really

[**Margaret**]

:ep1987:

 

Pleased that you've been awarded the benefit you're entitled to.

 

It's always worth requesting the statement of reasons. You never know when it might come in useful, (although errors of law are comparatively few n far between).

 

Did the judge give a start date for the year before reassessment? If not, the default date is the date of disallowance. Some decision makers will amend a prognosis but they don't have to. Once Jobcentreplus have processed the tribunal decision, a phone call to the number on the last letter you received from them should get you the date they plan to reassess. No point to complaints about early reassessment cos the regs allow Jobcentreplus to reassess at any time from three months after their determination of capability.

 

If you get an early ESA50, return it with a copy of the tribunal decision notice firmly attached. Sometimes persuades Atos/Jobcentreplus that there's no improvement, without a face to face messical.

 

The Jobcentre? Impossible to say, anywhere from immediately to several months depending on how busy their advisers are. You can't be mandated to do anything that's contra indicated by an ESA85/85A or tribunal decision. So take that statement of reasons with you.

 

Here's a link to the electronic ESA50, which I think you have to download and save on your computer if you want to work on it a bit at a time.

 

https://www.gov.uk/government/publications/esa-50-limited-capability-for-work-questionnaire

 

Best wishes, Margaret.