ESA Tribunal refused - Need advice

[sbreame]

Hello all,

 

After suffering an accident at work over a year ago (dislocated jaw) I have had severe TMJ disorder since. I am receiving treatment under my Dentist, with regular check ups with my Doctor. I have records at the Hospital for my TMJ disorder and may be referred to the Hospital for possible operations on my Jaw.

 

Long story short, I got 0 points at ATOS, and my tribunal hearing was completely refused. In the letter I received this morning, it stats that they understand I have a "Jaw problem" but that's it. Basically, the advice from my Doctor is null.

 

The doctor at the tribunal was easy to talk to but the judge made me feel incredibly stressed out. I was being looked at, and spoken to like I am dirt. It honestly felt like I was going to be sent down for years or something.

 

How it affects me ~

 

- Almost daily headaches and facial pain

- Jaw tightens up and locks up often

- Cannot talk for more than 30-40 minutes

- Migraine attacks with aura (so I can become half blind) (Migraines last up to 3 days for me)

- Ringing in ears / hearing loss

- Severe dizzy spells and drowsiness

- Severe fatigue

- Depression

 

The doctor there was shocked that, that day was the first time stepping outside for over 3 weeks. Am not enjoying life at all and now I'm basically forced to look for work where pretty much no-one will employ due to my health.

 

The judge was picking faults all the time, it felt like I was being interrogated on my condition. They both even asked "How is it a health / safety risk?" when I said it's a risk to myself and colleagues if I am operating machinery, carry an object or on a ladder.

 

Do I appeal to the higher tribunal or do I risk myself and other people in a work place?

[kirkbyinfurnesslad]

You claim jsa instead

[sbreame]

You claim jsa instead

 

Yes, that means I have to sign a contract stating I am 100% fit for work and I am going against the advice of Doctors.

 

 

Thank you for the reply, but it didn't help, I don't think you even read the thread

[reallymadwoman]

How long is it since the original decision refusing ESA? If it's more than 6 months you can make a new claim for ESA and go through all the rigmarole of assessment, 0 points, tribunal again. A regular contributor to this site had to do it 3 times before being awarded ESA.

[sbreame]

How long is it since the original decision refusing ESA? If it's more than 6 months you can make a new claim for ESA and go through all the rigmarole of assessment, 0 points, tribunal again. A regular contributor to this site had to do it 3 times before being awarded ESA.

 

I was originally refused ESA back in February 2013 or so when I scored 0 points. The tribunal refusing was 2 days ago.

 

I have had a splint made from my dentist which does work as more of a short term solution (need to get it altered as it's cutting into my gum) but my Dentist said I need to give it a solid month at least and if it doesn't "fix" my jaw, I will then be under the Hospital's care which can include up to 3 stages of operations on my jaw. I just don't know what to do

[reallymadwoman]

Make a new claim for ESA as soon as you can. It can often take a while for DWP to 'catch up' with the tribunal result and they won't let you make a new claim until the old one is closed.

 

There is a very useful guide to completing the ESA50 form in the stickies for when you need it.

[sbreame]

Make a new claim for ESA as soon as you can. It can often take a while for DWP to 'catch up' with the tribunal result and they won't let you make a new claim until the old one is closed.

 

There is a very useful guide to completing the ESA50 form in the stickies for when you need it.

 

It just feels like... I just can't take any more of this. I want to go back to work, I want to feel normal again

 

I'll restart the whole thing over the weekend. I just hope I will receive money else I'm not going to be able to pay my house keep and start going into debt

[**Margaret**]

:sbreame:

 

The work capability assessment is a test of your ability to perform activities that are relevant to the workplace. Any workplace, doesn't have to involve ladders or machinery.

 

Over the last six years, the criteria have been revised several times to become incredibly harsh. The document below explains how the effects of migraine and speech disorders are assessed.

 

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

(Pages 92 - 93 and 102 - 104)

 

Given that you're expecting more treatment, if your doctor's happy to continue writing Med 3 (unfit) notes, I'd suggest another turn on the misery-go-round. You'll need one anyway if you take more than two weeks break from active jobseeking. Have a new claim ready to send off immediately you hear from Jobcentreplus.

 

Best wishes, Margaret.

[sbreame]

:sbreame:

 

The work capability assessment is a test of your ability to perform activities that are relevant to the workplace. Any workplace, doesn't have to involve ladders or machinery.

 

Over the last six years, the criteria have been revised several times to become incredibly harsh. The document below explains how the effects of migraine and speech disorders are assessed.

 

 

Given that you're expecting more treatment, if your doctor's happy to continue writing Med 3 (unfit) notes, I'd suggest another turn on the misery-go-round. You'll need one anyway if you take more than two weeks break from active jobseeking. Have a new claim ready to send off immediately you hear from Jobcentreplus.

 

Best wishes, Margaret.

 

 

Hello Margaret,

 

The doctor at the tribunal asked why don't I do a receptionist job etc in which I replied that it would be a struggle due to hearing loss, fatigue and dizziness. At home, I have the sofa or my bed within short distance for if I need to lay down to rest. I suffer from Migraines with aura, soon as I see "flashing lights" (My vision is cut in half during the initial attack) I have to be in a dark, quiet room and sleep for a few hours with fear that when I wake up, I will be in complete pain. The worst attack I had, I couldn't move my head at all and was bed-bound for almost 24 hours. Majority of my attacks, I cannot bend down as the pain is too much and I feel... not human for 2-3 days.

 

All this was discussed at ATOS, DWP and the tribunal and every occasion, it's been completely ignored.

 

My Doctor is happy to write notes until I'm better as it was his advice and strictly told me that I am a big danger to myself and others if I work with my current condition. If my mouth guard works without gum pain when wearing it for a long time (looking at a good 22 out of 24 hours a day) and be given time to adjust to the treatment, I no doubt will be able to go back to work which is what I want. However, DWP wants me to go back into work asap regardless of the evidence that medical professionals have given. This time in a few months I could have repeated surgery on my jaw that includes complete reconstruction of my joints, yet to DWP and that judge on wednesday, all I have is basically a minor jaw problem and -that's- it. No mention of depression, no mention of a wide variety of other symptoms I suffer day in day out.

[sbreame]

I will just sign on to jobseekers and just hope I don't injure anyone in a workplace. This whole thing is going to kill me off sooner or later, I just can't be dealing with it anymore. Will just be a part of a statistic as they say.

[Nystagmite]

Do you actually meet the descriptors for ESA? Just having a disability isn't enough.

 

Someone who is disabled can claim JSA but they must still be able to work.

[abc123def]

sbreame, knowing someone with very similar condtions and symptoms to you, they have found that they do not meet the descriptors needed to qualify for ESA. They are in receipt of JSA and their illness has been taken into account as to what work they are able to apply for and what they aren't so don't have to apply for any work they can travel to unlike other claimants. I hope that your JCP advisor is as understanding.

[sbreame]

sbreame, knowing someone with very similar condtions and symptoms to you, they have found that they do not meet the descriptors needed to qualify for ESA. They are in receipt of JSA and their illness has been taken into account as to what work they are able to apply for and what they aren't so don't have to apply for any work they can travel to unlike other claimants. I hope that your JCP advisor is as understanding.

 

Well, when my ESA was originally declined last year, I went to my local job center and was pretty much giggled at and was told by them that if you're on JSA, then you're 100% fit.

 

I can't see anyone employing me where I sit down and barely do anything all day every day with the common chance that I need 2-3 days off to recover from a bad migraine attack or have a bed on site for me to lay down for when I feel very dizzy and off-balanced. I am deeply depressed, have had suicidal thoughts, personal hygiene has fallen to an horrible level, but that's all okay, as long you arn't dead, you're 100% fit.

 

Thanks for the advice/help, I won't post any more, the whole thing is making me feel even more depressed the more time it goes on. Take care all.

 

 

EDIT : I don't mean to come across as rude, but people seem to be coming across like.... "it's only a bit of jaw pain, you can work" but no-one seems to suggest or give a slight idea on WHAT line of work I can do when I have to lay down multiple times of the day due to the drowsiness and dizziness. Just another case of "If I can't see it, it doesn't exist" ultimately.

[abc123def]

sorry if I came across like that sbreame. There are many people who are definitely not well enough to work but fail to fit the descriptors on the ESA50 to get enough points to be assessed as being not well enough to work. That is the awfulness of the system. Many people fall in that hole, and I am sure that the person I know who has an understanding JCP advisor is probably in the minority, and that many/most advisors won't understand or fully appreciate the difficulties of someone unwell but who aren't eligible for ESA.

 

I know another person who is not well enough to deal with constant assessments/appointments so atm does craft work at home and sells on ebay/websites and is claiming WTC but with the new rules coming in with UC and them expecting people to be getting the minimum wage (which she doesn't) she will be forced into JSA and I know for a fact that she won't manage that as she never ever leaves her house. A relative takes her shopping in, her social anxiety is extreme. Wonder what the DWP/JSA will make of that when the time comes. I think she is unaware as yet of how UC will affect her.

 

It's all pants, and you have my sympathy.

 

eta and conversely there are many people who do get the necessary points to be awarded ESA but actually are well enough and able to work.

Edited January 17, 2014 by abc123def
to add extra point

[ep1987]

One possible solution would be to re-apply for esa focusing on the inter-relationship between mental and physical factors. Describe your emotional state to your GP and ask for a referral to the community mental health team.

 

You will once again fail the atos assessment and have to go to tribunal. One thing that this will do though is buy you time in which you can focus on getting better without interference from the dwp. If your situation doesn't improve then you can provide evidence from the cmht and your gp as to how the accident at work and subsequent problems have affected your emotional well being.

 

Write a submission detailing what points you believe you should be awarded per the descriptors as well as a general overview of how your current impediments affect your day to day life, highlighting that you are now are unable to leave the house due to your condition and are plagued by suicidal thoughts.

[estellyn]

The difficulty is that there are huge gaps in the ESA descriptors that mean people who are very definitely not capable of working do not qualify, for instance:

 

 

those with primarily pain disorders (unless it affects mobility)

those with fatigue disorders (unless it affects mobility)

GI disorders (unless incontinence is involved)

 

 

There are undoubtedly others, but you get the idea. Some people are really screwed by the assessment and their only hope is to try to prove that work would cause their condition to significantly worsen.

 

 

In your case, maybe concentrate more on the depression and the effects from that and see if that fits in with any of the descriptors.

 

 

You lose nothing by reclaiming ESA. You'll be on the same rate as on JSA but won't have to look for work - but you will have to go through the assessment process again. The trouble with JSA and an illness like yours is that you may well have to miss signing appointments due to symptoms, or not fulfil the work seeking requirements, you may risk sanctions or be forced back onto ESA anyway.

[paulb1310]

Is this not a Regulation 29 argument? In that "the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work."

 

 

[**Margaret**]

:sbreame:

 

There's a chasm between what most of us consider fit for work and Government's legal definition of limited capability for work. And over an internet forum we've no idea whether you meet the legal criteria. After you've had a few hours (days?) in a darkened room, and some trashy telly or a few computer games your current options are;

 

Reclaim employment n support until your jaw's as good as it's going to get. Med 3 (unfit) notes will allow Jobcentreplus to treat you and pay you as having limited capability for work, so you can recover from your injury and its side effects. Probably involve another encounter with Atos and another trip to tribunal, but it'll buy you some time for the further treatment you may need.

 

Resolve to claim jobseekers and seek any work that you can do within your current limitations, even if it's only a few hours a week for your self esteem. Should you choose jobseekers, ask to see a disability employment adviser for possible concessions as described by :abc123def: on your jobseeker's agreement/claimant commitment. Jobseekers are allowed to declare two periods (up to fourteen days each) of sickness within the previous twelve months. More than that, and they're directed to claim employment n support. Although transitions between the two should work smoothly without waiting days, payments are often delayed while the system catches up.

 

Government policy puts lots of sick claimants into a no win situation, but the correct option's the one that's best for your long-term wellbeing. Margaret's prescription is a discussion with your doctor and an informed choice between the limited options.

 

Best wishes, Margaret.

Edited January 17, 2014 by **Margaret**

[sbreame]

Hi all, thanks for the messages.

 

Sorry about earlier, was getting really agitated and frustrated.

 

I was receiving the minimum rate (exact same amount as JSA) but it was enough to pay for my house keep, bills etc, am generally left with about £10 at the end of the month. I will try talk to an adviser on monday and go from there. I've had no other letter saying when payments will be stopped or what I should do next, the whole thing is very stressing (which is a major contribution to my condition) and confusing.

 

I didn't mention half the stuff I wanted at the tribunal, mostly down to the Judge making me feel incredibly nervous, anxious and I simply felt like I was being caged. The Judge asked me if I have seen my doctor regarding the dizziness and drowsiness, I said "Yes, he agreed it's linked and is a symptom" the Judge sat back in shock... like it's the first time he's heard of it. He also kept asking "why" do I feel drowsy and "how" it's linked... it felt more like an interrogation than an actual discussion.

 

Also, I've been sending sick notes every 3 months, at the tribunal, they only had the first one and said "Oh, you must of sent them to another department" Even though I received multiple letters to let me know that they have received them.

 

The judge also said "What?" in a strong fashion as if he didn't hear or couldn't understand what I was saying. I could barely move my jaw (due to stress + cold while traveling) but again, none of this was mentioned in the letter.

 

I don't know if it was because of my age but it just felt like the outcome was decided before I even stepped foot in the court.

[Nystagmite]

If you have trouble talking and with your hearing, you may meet the criteria in regards to sensory impairment. Something about making yourself understood and something about understanding other people.

 

You must be able to repeat the task with no pain or discomfort. So, if you can do the task once and that's it for the day, you meet the descriptor.

 

The regulation Paulb mentioned, does exist.

[sbreame]

I had a massive argument with my mother tonight and had a complete emotional melt down, this has been building up inside for months and I guess I just exploded. I think I will go Doctors on Monday, I even punched myself on the jaw 6-7 times, I didn't feel a thing, I had to fight to "come back around" this is not me at all

[ep1987]

You need a referral from your GP to a psychological service to help deal with your current mental health problems. I speak from experience when i say that i understand the misery, hopelessness, anger and frustration that can result from the ridiculous policies of the dwp. I also know how hard it can be to ask for help.

 

In the meantime you should re-apply for esa; there may be a short gap in your payments but so long as you keep providing sick notes you will be paid at the assessment rate up until your next tribunal (although there will be another payment delay at the mandatory reconsideration phase). I know that losing your case must have been a real body blow but you need to stop punishing yourself and focus on getting better.

[sbreame]

You need a referral from your GP to a psychological service to help deal with your current mental health problems. I speak from experience when i say that i understand the misery, hopelessness, anger and frustration that can result from the ridiculous policies of the dwp. I also know how hard it can be to ask for help.

 

In the meantime you should re-apply for esa; there may be a short gap in your payments but so long as you keep providing sick notes you will be paid at the assessment rate up until your next tribunal (although there will be another payment delay at the mandatory reconsideration phase). I know that losing your case must have been a real body blow but you need to stop punishing yourself and focus on getting better.

 

I don't think I can go through the whole ESA thing again, I really can't. I'd rather just go get a job on Monday on a construction site and whatever happens, happens. I've had a year of stress and depression partially because of ESA, I just want to get my mouth guard altered on Monday and just find work that day. I'm 24 years old with nothing to show for it, I love working on a Construction site but have worked in various other work places since I was 18. If I go down the ESA route again, I feel it's only gonna push me deeper in depression and maybe take me out for another year.

 

The pains in my jaw - I can deal with. It's the dizziness and drowsiness that is doing the damage.