ESA tribunal worries - **Appeal Upheld**.

[bydand]

My husband was on IB and had a Atos medical last year - which resulted in them claiming he is fit for work. He has horseshoe kidneys that are upside down, one side has minimal function and the function of the 'good' side is impaired - he has a stent inserted to heal his bladder drain - without it his tube blocks and causes the kidney to swell. He suffers from continuous lower back pain, which increases when he walks about and radiates into his groin area. He is on Tramadol and Paracetemol for the pain. He also suffers from Raynauds and even though he talked nifedipine he still looses circulation in his hands and feet in temperatures that are mildly cool. He suffers with painful joints (they thought at first it was RA - they then think it's Hypermobility syndrome - we are due to see another rheumatologist next week). His ill health (over the last 20+ years), the constant pain and not being able to do all the things he wanted to (including bring able to work!) has also led to him being diagnosed with depression (I originally got him to speak to his gp over a year ago about his depression - gp just waved him off with I'm not giving you tablets! Luckily we saw a different gp this time and she was more understanding.

 

He failed at MR stage (no one phoned to speak to us as they stated they had) and is due to attend a tribunal next month. He cannot walk more than 50 meters without suffering pain and discomfort, including breathlessness die to pain levels. He only goes out to attend gp and hospital appointments - which leave him physically exhausted and mentally drained. He spends most of his time in bed (the bedroom is nearer to the toilet too which dosent involve him climbing up and down the stairs.

 

According to the paperwork we were sent for the tribunal his gp (who wouldn't entertain his depression) had put that he was mobile next to the list of descriptors - instead of putting down the issues. How can we fight this 'evidence'?

We have tried getting supporting evidence from the kidney consultant but can't see him till 2 days before tribunal!!

 

I fear for my husband's mental state and worry about suicide - he already feels worthless and has said we would be better off without him!! I can't loose my husband - can anyone offer any advice please xx

[bydand]

I also forgot to put that he only manages a few hours 'proper' sleep at night - he can nod off through the day - sometimes as a result of taking his medication - also due to total exhaustion.

[tommy456]

I also forgot to put that he only manages a few hours 'proper' sleep at night - he can nod off through the day - sometimes as a result of taking his medication - also due to total exhaustion.

Sounds like the GP has let him down by lack of support, But by actually going to the ATOS Face 2 Face interview/interrogation because it anything but a medical and often carried out by someone who isn't medically qualified when they scrapped IB and introduced ESA they changed the goalposts in their favour in a big way,there are lots of sick people out there who would of satisfied the criteria for IB , but don't satisfy the criteria for ESA which is totally wrong in lots of cases

Some GP's have lost faith in the system too, even after supplying medical evidence and letters to say how these health issues could or do affect their patients day to day ,some have lost their appeal, or ATOS /DWP have ignored the evidence

 

Hopefully the consultant will provide a report on the condition he is treating him for and how this affects his daily life , I think you can hand in evidence on the day,? if not and the appeal goes ahead and its not found in his favour ,then you maybe able get the decision set aside and have the appeal re heard

[Lapsed Workaholic]

For your request to the Appeals Tribunal Service for a Hearing to have been accepted they must be of the opinion that there is case to answer. This in itself should help to ease your own and your husband's anxiety. How much time do you have before the Tribunal Hearing? Hope there's enough time to help you to prepare.

You say that your husband's Mandatory Reconsideration (MR) stage was unsuccessful. He would have been sent a letter explaining why it was unsuccessful I presume? That letter might stand scrutiny.

For example, what does the GP mean by 'mobile'? Perhaps you could write to GP asking for definition and also to DWP Decision Maker if he referred to it in his letter explaining his reasons for arriving at his conclusions in his MR.

 

If there are any other points raised in said MR that you don't fully understand you could ask for them to be explained and defined too.

 

Doing this would be useful at the Hearing as evidence that you were not fully apprised of the reasons for being refused ESA and that you asked for them. The Judge at the Hearing will have to be able to explain himself on every point he uses to reach his conclusions. If the explanations are vague then there is a legal justification for any finding to be overturned.

 

As Tommy says you can present and clarify any evidence in support of your case at the Hearing on the day. Hopefully you will have received the consultant's report in time, if not there are ways round that too.

[honeybee13]

Hello there.

 

Here's a link for the forum stikky with a document for the tribunal to consider. It's made on my own submission to a tribunal and covers how your symptoms or daily life match up with the DWP descriptors.

 

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

 

HB

[Nystagmite]

The criteria for ESA has changed. It's now not enough for him to be unable to walk. He must be unable to now mobilise.

[squirrelly Whirley]

Hi bydand,

 

Do you have a welfare rights worker? Some Local Housing Associations directly employ Welfare Rights Workers, or they can be found through the Citizen's Advice Bureau (CAB) or your local social work department. They may be able to successfully plead for more time for you to structure a strong case.

 

I have recently succeeded in gaining both ESA and PIP , though I was forced to take both to appeal. My own experience with the CAB was poor because there seemed little experience with appeals. They did however tell of legal-aid funding to gather medical evidence. I feel certain that my success at appeal was squarely due to the medical evidence provided by my doctor and consultant.

 

If you speak to your doctors before they write the medical report's covering letter, be sure to ask them to include how the stresses and strains of returning to work would affect your medical condition in the immediate, short and long-term.

[bydand]

Thank you all for your replies. I will contact the GP about what he put, in the box at the bottom he also put 'this is a genuine case'. When he originally spoke to us about him having filled in the form (which was in 2013) he told us a slightly different version and never mentioned the descriptors - otherwise I would have questioned him further.

The tribunal is 19th so not long to go and no one to turn to in such a short time.

Nystagmite I fully appreciate what you've said and did read about the imaginary wheelchair to mobilise. My husband suffers with severe pains in his arms/wrists/hands (as well as all over his body) that lock and crack painfully several times a day. Personally I believe he would not be able to use a manual wheelchair due to these problems.

I've bern doing a lot of reading about Hypermobility and feel that my husband also has fibromyalgia as everything fits - we are seeing a rheumatologist on Tuesday so fingers crossed we get somewhere.

 

As he suffered with the symptoms of hypermobility and fibromyalgia at the time of filling in his claim form and his assessment (12 months later) would they take into account a diagnosis from now as it was under tests etc at that time. The same over hos depression - it was there but wasn't diagnosed till afterwards.

 

As his health has deteriorated since his assessment would we be allowed to claim straight away if we were unsuccessful this time?

[honeybee13]

Have you looked at the template letter in the stikky I posted earlier, bydand? It helps you to marshall your arguments.

 

It's quite a long time to the 19th.

 

HB

[bydand]

Have you looked at the template letter in the stikky I posted earlier, bydand? It helps you to marshall your arguments.

 

It's quite a long time to the 19th.

 

HB

 

I have thanks, am working through it all - it can be quite draining though I am determined to do all I can.

[bydand]

Can I also add that my husband does TRY and do things - it's just that he suffers extreme pain and fatigue (which is made worse when he does anything! He attended physio last year (where the PT explained that his knee caps were slightly dislocating and that's what was resulting in the clicking and cracking). He had to stop going as he was suffering from increased pain from his kidneys and stent (which ischanged every 6 months). He has been continuing with the simple exercises she gave him to do and we did use to go to the pool (first thing on a Sunday morning when no one was around to avoid additional stress) however just 15/20 mins in the pool walking up and down and stretching left him bedridden for days due to fatigue and pain.

 

He has previously had surgery on both ulner nerves as he was waking up with numb hands all the time and he has had steroid injections in both his thumb joints to alleviate pain.

[Lapsed Workaholic]

It would appear from this second comment by your GP that my first impression of him may need revising. All the more reason why he should be asked to explain or define his use of the word 'mobile' on the form. Was it an answer to a specific question? Was it his way of attempting to highlight your husband's mobility as a major issue? Surely he would consent to discuss the issues with you if he was made aware of the approaching Tribunal and how it is affecting his patient.

 

You could list all that good stuff that you have mentioned here and your concerns and ask your GP and the specialists to prepare and include those concerns in a written report if they accept that such concerns are appropriate and relevant.

 

The Hearing that you are preparing for is to decide whether the decision resulting from the assessment last year was the right one. The evidence used by DWP to arrive at that decision was, by the sound of it, the ATOS medical and assessment and nothing else. Obviously the DWP is going to argue that evidence that was not available could not be considered.

 

The question then is; was there evidence but that evidence wasn't considered? Your GP and the specialists could confirm that any subsequent diagnosis, the result of tests etc, were applicable at the time of the assessment but no consideration was given to the fact that tests and diagnosis was ongoing and no time was allowed to prepare and present it. The only reasonable conclusion, in my view, that the Judge can come to is that the Decision Maker failed in his duty to seek or consider any other evidence which he knew was available, or would be when the results of the tests became known.

 

It could be argued that your husband's physical condition was affecting him mentally, and it would be surprising if it were not, but they were manageable until his treatment at the hands of DWP accelerated the deterioration in his mental state which then had the effect of accelerating the deterioration in his physical condition.

 

You must try and be positive, and convey your confidence in your success to your husband. If the worse comes to the worst, yes, a deterioration in your husband's condition and the availability of new evidence means that you could re-apply for ESA straightaway.

[bydand]

I will contact the GP and ask for further clarification of his answers. He has been treating my hubby for a long time - in fact he was the one who first sent my hubby to hospital with kidney problems as his previous GP just kept trying to treat him for a pulled back muscle (despite going back several times over several months with no improvement).

 

When we requested MR I began listing Our reasons - after a few I was told to stop and that I would be able to discuss things with the DM when they called - no call came - even though it is stated in the paperwork that they tried more than once to make contact. This happened not once but twice! They even stated the 2nd time that they had spoken to someone who stated we wernt in and didn't know when we would be back - I asked Our children but they said they never took any such call. Could they have called a wrong number??

[bydand]

My husband says they might as well shoot him now as they will only tell him it's all in his head (he has had experienced this before - quite sometime ago).

He's going to find the tribunal hard because from what I've read he will need to be answering their questions and making statements - due to his anxiety and depression I usually do most of the talking.

[honeybee13]

Have you read the descriptors? In any appeal, it's important to relate how someone's health impacts on their daily life, not just list their symptoms and medication.

 

There should be a link to the descriptors in the stikky I gave you. If it doesn't work please let me know.

 

HB

[Lapsed Workaholic]

Not sure who advised you not to prepare and present your evidence to the DM but you were ill-advised. Everything should be in writing. People find out to their cost when it is too late that relying on DWP verbal promises or exchanges is not to be recommended under any circumstances.

 

Regarding the effect that the Hearing might have on your Husband. You could be ready to seek leave at the beginning of the Hearing to raise with the Judge your concerns about your husband finding it an ordeal and the effect that it could possibly have on him and that unless it is vital that he make statements it would help proceedings if you answered for him if at all possible.

[Nystagmite]

With any descriptor, he has to be to be able to repeat them in a safe, reliable and timely manner. With mobilising, if he can mobilise 10 meters, stops because of the pain, mobilises another 5 meters and then stops again, he's classed as being able to mobilise 10 meters.

 

The diagnosis doesn't matter. If there's evidence at the time of the assessment that says he has these symptoms which caused him chronic pain, that's all that's needed.

[Lapsed Workaholic]

Bydand said that she was preparing a list of the reasons for seeking Mandatory Reconsideration to send to the Decision Maker. This, I presume would be evidence that the DM would have to take into consideration when making a decision.

She was advised, advised mind you, that this was not necessary as the DM would be asking the appropriate question when s/he called. Who was that advice given by? Was the person giving it in a position to say what the DM would or would not do or say when s/he called? To whom is that adviser accountable?

Most recipients of such advice, if given by someone they presumed would know, would take it in good faith. It would be reasonable for them to conclude that the DM would contact them and that what they said to the DM would be used as evidence in the reconsideration.

The DM made no contact, therefore what evidence did s/he use in making what the law requires to be an informed decision?

I am not sure what diagnosis Nystagmite says does not matter. Nor am I sure if he is seriously suggesting that a DM can decide on what is, or is not, relevant.

Also can anyone define 'mobilise' and 'repeatedly mobilise'?.

[Nystagmite]

Mobilise is to do with moving using aids such as crutches, walking sticks, a walking frame and a mannual wheelchair. You would not be expected to use an electronic wheelchair though, from what I remember.

[bydand]

Bydand said that she was preparing a list of the reasons for seeking Mandatory Reconsideration to send to the Decision Maker. This, I presume would be evidence that the DM would have to take into consideration when making a decision.

She was advised, advised mind you, that this was not necessary as the DM would be asking the appropriate question when s/he called. Who was that advice given by? Was the person giving it in a position to say what the DM would or would not do or say when s/he called? To whom is that adviser accountable?

Most recipients of such advice, if given by someone they presumed would know, would take it in good faith. It would be reasonable for them to conclude that the DM would contact them and that what they said to the DM would be used as evidence in the reconsideration.

The DM made no contact, therefore what evidence did s/he use in making what the law requires to be an informed decision?

I am not sure what diagnosis Nystagmite says does not matter. Nor am I sure if he is seriously suggesting that a DM can decide on what is, or is not, relevant.

Also can anyone define 'mobilise' and 'repeatedly mobilise'?.

 

I have the name for the person I spoke to about our reasons for requesting MR as its on the paperwork we were sent. He works for the DWP and I honestly thought I had been given the correct info. He did list some of the reasons I was giving but failed to have a complete list due to telling me to wait for the phonecall - that never came!!

 

We had told the HCP at medical that test were ongoing for one of his debilitating conditions - I also told her that we had spoken to GP about depression a while before but had been 'brushed to the side' as he just stated that he 'wasn't going to issue medication for it' (medication that my husband is NOW on thanks to the another GP)

[bydand]

The HCP stated that he had not sought medical help over Anxiety in her statement (which he had done when we were asking doctor about depression symptoms) she also failed to mention that the diagnosis for the other condition was ongoing. This is the type of information that the DM had in front of them when making their decision. Although I had asked them to listen to the medical which had been recorded, which they stated they had - yet they missed those 2 points. Is that because it hadn't been specified (due to intervention from DWP man before MR??)

[Lapsed Workaholic]

So far you have confirmed that an employee of the DWP, to whom you applied for a Mandatory Reconsideration over the phone, stopped you in your tracks when you were reciting to him the list that you had prepared to present to the Decision Maker as supporting evidence of your husband's condition.

Does the letter giving his name give his title or position? Can we take it that he was not the actual DM?

This employee of the DWP was correct in so far as he relayed to you, albeit not as clearly or concisely as he ought to have done, the fact that the DM would be asking for your input before making a final decision. Where he erred was in not advising you to send a written statement of your evidence and also committing the DM to following an action that he, the DM, was obliged to take, but that he, the employee of the DWP, was in no position to guarantee.

It is because of mix-ups like this that it is always advisable apply for a MR in writing and enclosing with it a statement of reasons and/or all relevant evidence.

The DM erred in not seeking the evidence that s/he is obliged to seek and consider before coming to a final decision.

On that basis you could forward a complaint of Maladministration to the DWP.

Your priority now, I believe, should be to prepare for presentation;

1. all the evidence available at the time of the original decision that the HCP and the DM subsequently deny having seen.

2. all the evidence available at the time of the original decision that the DM, through his negligence, failed to seek and to take into consideration.

3. all the evidence subsequently obtained as a result of test completed after the original decision but applicable at the time the decision was made.

4. the effect that the physical was having on the mental, although applicable, noticeable and reported at the time and was not properly diagnosed or acted upon until the continuing deterioration in the physical exacerbated the mental.

I can't see any reason why you should not now feel confident in a successful outcome at your Hearing, unless we're missing something.

[bydand]

Thanks HB and LW your help has been fantastic x I've filled in the template and that's going in the morning.

I sent the GO a letter asking for an explanation for his comments, he phoned with his reply. Apparently he is not able to make comments on how conditions affect my husband's mobility etc as this is classed as Social Care and apparently the DWP are aware of this, he added that this is why he put the not at the bottom about my husband having genuine problems.

 

Its just so disheartening, I feel like I'm going insane whilst trying to convince everyone around me that everything's going to be ok

[bydand]

Thanks for all your help x

[bydand]

Went to tribunal today - was degrading and humiliating for hubby - however they awarded him 18 points so he's now in WRAG.