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ESA - Lost Tribunal - Upper Tribunal Awarded...UT Postponed!!!!


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Hello. New to the forums and have been browsing the internet to find a decent support forum and ended up here.

 

 

After being made redundant last year (I am a van driver) I fell ill with Vertigo which is extremely debilitating and although various tests have come back clear (MRI etc) the Doctors are unsure as to what the problem is although my consultant believes it is either Menieres Disease or Migraine Assisted Vertigo. The only test they can do to find out what the problem is is invasive and can by all accounts damage your hearing and being partially deaf anyway I am unwilling to take that risk.

 

 

Not long after the vertigo began I also started to experience severe Insomnia to the point that I would not be getting any sleep at all. Again various tests have been performed and after lengthy waits I have finally been cleared of Sleep Apnoea which was the first port of call. Again my consultant is not sure as to what is going on so I am back to square one with getting a diagnosis.

 

 

I am on long term sleeping tablets for the Insomnia and whilst they do knock me out from time to time I have extreme daytime fatigue and headaches on top of the Vertigo. The consultant believes that this is a combination of the tablets (drowsiness side effects) and the fact that I have not slept naturally for 6 odd months. So a bit of a quandary considering I get no sleep without the tablets but I am still exhausted taking them!!

 

 

My Vertigo attacks have diminished to an extent but that is down to the fact that my horizontal balance mechanism is basically gone and it will take some time to repair if at all. This leaves me in a state where every movement I make, when I walk, everything in front of my eyes wobbles. It's as though I am not looking through my own eyes but a film camera being held by a cameraman moving. When an attack happens I get no warning. Everything just spins and all I can do is sit down and wait it out.

 

 

Not long after my vertigo started and whilst I was awaiting a GP appointment I went to two interviews to get back into work. At the first I had a vertigo attack and was bouncing off the walls as I was led to the interview room. Needless to say the interview didn't last long! The second I was honest about my condition and was turned down immediately for the job. The interviewer said that I couldn't be employed due to my vertigo because of a Health and Safety issue. Basically he argued that if I had an attack and fell down the stairs who would be at fault, me for taking the job aware of my restrictions or the company for employing me?! I could see his point considering a health and safety lawsuit was not particularly appealing to him. And it throws in an interesting legal question on what legal risks the DWP are taking by forcing people declared "not fit to work" back into work.

 

 

It was after this that I was signed off as unfit for work by my Doctor and I have fit notes ongoing since October. I claimed both ESA and PIP after advice and was awarded ESA at the starting rate. I was turned down for PIP after a medical assessment.

 

 

Last week I received a letter stating I was to attend a Work Focused Interview at the Job Centre. After looking up advice I rang the DWP and explained that nothing had changed since a first "chat" at the Job Centre back in January and did that mean I had to attend the latest meeting. I was told it was voluntary and it would not affect my benefit if I did not attend. So I didn't.

 

 

This week I have received a letter now informing me that I have to attend a medical assessment for ESA. I assume that this would have come through regardless as to whether I had attended the Work Focused Interview or not?

 

 

The thing that concerns me is that from what I have read the medical assessments for both PIP and ESA seem very similar and if you can dress yourself, get out of bed unaided and make yourself a sandwich you seem to be deemed fit to work?! It doesn't seem to take into account the massive difference between being able to look after yourself to performing a full time job and also does not take into account the fact that if I am honest at any interviews the chances that someone would employ me at this present time are slim to say the least. Certainly my usual occupation of driving a van will be somewhat difficult to achieve if the road ahead of me constantly wobbles or disappears into a merry go round like spin!! That's not taking into account that I would also be driving a van on zero hours sleep!!

 

 

So if I can walk 200 metres (although not currently in a straight line) or do my shoe laces up (whilst trying not to fall over) are deemed not severe enough then I assume I will score 0 points like many others and lose my benefit? Then from what I have read you have to then claim JSA although with not much in the way of work in the last 10 months or so I doubt I will qualify for contributions based. But despite being continuously being signed off work by my GP does applying for JSA actually mean that you are now declaring yourself fit for work not taking into account the fact that I am pretty much unemployable right now!! Does this then mean you leave yourself open to an interesting legal predicament?

 

 

I hasten to add here that I do not want to be on benefits. I want to be back at work but if I am unemployable ESA is my only option and if I lose that I have no idea what I am going to do.

 

 

I really don't know what to do at the moment and was wondering if anyone had been in a similar situation and how they dealt with it and what they did?

 

 

Thank you.

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So at the moment you're claiming ESA on the initial rate all claimants get at first?

 

Until you have had the F2F assessment with the interrogator at Maximus, who now carry out the flawed work capability assessments, then you won't move onto either the WRAG work related activity group, OR the SG, support group, where they will give your their 'prognosis' of when they think you will be likely to move back into work.

 

Is your GP on your side?

 

Have you received the ESA85 form the DWP/JCP send out prior to your F2F assessment?

 

If you can get as much documentation and info you can surrounding your health then this will help you massively, as when you return the ES85 document, you can include as much, if not ALL, of that info you have from the specialists/GP etc so they will know already that you're unlikely to be fit for work at the minute.

Who ever heard of someone getting a job at the Jobcentre? The unemployed are sent there as penance for their sins, not to help them find work!

 

 

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Hello there.

 

Here are a couple of links for you, to forum stikkies about filling in the DWP form and about the 'medical' itself.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?316210-ESA50-Guide

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?287253-esa-medicals

 

HB

Illegitimi non carborundum

 

 

 

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Thank you for your reply.

 

 

Yes I am on the initial rate. I got a backdated payment around December and have since been on the initial rate.

 

 

My Assessment is in around two weeks but have yet to receive any ESA85 form. I filled in a form at Christmas but I think that was just a general claim form. I remember filling in a different form for PIP for which I remember I ticked the box "sometimes", or something along those lines, an awful lot.

 

 

My problem is it's impossible to see our GP for at least 3 weeks which will be after the assessment so chances of asking him to write anything other than a fit note is slim.

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http://www.disney.go.com/mickey//forum?view=topic&catid=10&id=88302

 

Some reading for you, find and print off an ESA85 form, and fill it in and take it with you, they deliberately fail to send them out in order to kick you off ESA, but any FtT would find in your favour.

Who ever heard of someone getting a job at the Jobcentre? The unemployed are sent there as penance for their sins, not to help them find work!

 

 

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ome reading for you, find and print off an ESA85 form, and fill it in and take it with you, they deliberately fail to send them out in order to kick you off ESA, but any FtT would find in your favour.

 

Sorry a bit confused by :

 

1/ The link you included?!?

 

2/ What is an "FtT"?

 

3/ Are they meant to send an ESA85 form before they send you for an assessment?

Edited by Max1968
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ok please enlighten me (and for the benefit of the OP) the HCP - health care provider is who like the hospital? not the GP as the GP provides a letter right ie supporting evidence what's the difference between supporting medical evidence like a GP letter and a ESA85 form? and when do you provide a esa85 I never got any info about that only go the ESA50 as far as I remember sent to me on behalf of DWP by atos/maxmus

 

 

also bazooka what's that link about lol

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Apologies, IGNORE the link in my last post, it does that sometimes? Never know why though??

 

And I'm getting all my numbers muddled up, thank you Nystagmate....

 

Search for ESA50 form.

 

FtT = First Tier Tribunal, a deliberately lengthy, tedious process of forcing the DWP to act lawfully.

 

This is what that form should look like, http://www.nawra.org.uk/Documents/Cardiff_Mar_10/Fit%20for%20Purpose%20%20A%20Guide%20to%20Completing%20the%20ESA50.pdf

Edited by Bazooka Boo
Disney Links AGAIN!!!

Who ever heard of someone getting a job at the Jobcentre? The unemployed are sent there as penance for their sins, not to help them find work!

 

 

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Thanks for your replies.

 

 

I read through the ESA50 form and it's pretty much the same as the form I filled in for PIP. At the PIP Assessment I scored a mere 2 points, which was just for wearing a hearing aid! I probably didn't help myself on the form by writing 'it varies' on most questions but at the same time I was truthful, it does vary. Right now I cannot tell if I am going to have a good day or a bad day. How can any of us know?!

 

 

So is there much point in downloading and filling out my own ESA50 because both are from the DWP and if my ESA50 form was suddenly different from the PIP form the DWP would probably notice would they not? Plus if answered truthfully which of course I would I can only see me getting a handful of points tops anyway,. For instance they ask if you can walk 200 meters unaided. Well I can but not necessarily in a straight line but this option is not there on the form. I am just wondering if I fill in the form off my own back when it probably wouldn't be beneficial to my claim I am making trouble for myself and would just be better off facing "the firing squad" on their own at the assessment?!?!

 

 

Nothing on the form seems relevant to Vertigo or extreme fatigue. As I said before this doesn't necessarily stop you washing yourself, cooking and dressing and existing but it does stop you when it comes to being "fit for work".

 

 

Should I call the DWP and see as to why a form hasn't been sent and would it be any benefit if I received a letter from my Doctor to take to the Assessment explaining as to why I am not deemed fit to work? Or would a letter written by me and countersigned by my GP (to save him time and effort) be of any benefit?

Edited by Max1968
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Actually after trawling through all my paperwork it seems that I may have already received and completed the ESA50 form. I can now see from my records that I filled in two forms in December. One for PIP and a "Capability for Work" questionnaire for ESA. I should have kept a copy of the forms but stupidly didn't, I just kept the top copy of the form and wrote on it what date I sent it back. I sent the "Capability for Work" questionnaire back on 21st December.

 

 

It does say under "what happens next" that once the "Assessment Provider receives your completed questionnaire and any other information you send with it, they may contact you to arrange an appointment for a face to face assessment."

 

 

I can now remember completing two similar forms, one for each benefit so even though the top copy doesn't actually refer to ESA50 that's what it must have been. And considering I hadn't at that time looked into websites such as this for advice on how to fill in the form my 'it varies' answers have probably left me totally screwed!!!

Edited by Max1968
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I suggest that you start reading as much information as you can find on the Work Capability Assessment, which is what you've been asked to attend, but do bear in mind that people who's assessment goes smoothly don't normally post online about it, so information will be very much biased toward those whose assessment did not go well.

 

I would start with the forum stickies, under ESA resources or something similar, and familiarise yourself with the criteria to be awarded ESA. Identify the areas where you are most likely to score points and make yourself some notes about relevant information that you will want to give to the assessor - who is incidentally most unlikely to be a doctor - it could be a nurse, midwife etc, and he/she need have no specialist knowledge of your condition or it's usual effects. If you don't think you have a chance of scoring 15 points, you could consider whether you meet the criteria for work or work-related activity causing a substantial risk to your or your colleagues health - ie. if requrired to work (it doesn't have to be full time or in your usual occupation) would you be at substantial risk of injury or making your condition worse?

 

Whilst medical evidence might help, unless your GP knows how your condition affects you and can give information on how the criteria apply to you, then a letter from them at this point isn't likely to be of much use.

 

Get reading, make a note of anything you don't understand or would like someone else's perspective on, and come back with more questions.

RMW

"If you want my parking space, please take my disability" Common car park sign in France.

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I suggest that you start reading as much information as you can find on the Work Capability Assessment, which is what you've been asked to attend, but do bear in mind that people who's assessment goes smoothly don't normally post online about it, so information will be very much biased toward those whose assessment did not go well.

 

I would start with the forum stickies, under ESA resources or something similar, and familiarise yourself with the criteria to be awarded ESA. Identify the areas where you are most likely to score points and make yourself some notes about relevant information that you will want to give to the assessor - who is incidentally most unlikely to be a doctor - it could be a nurse, midwife etc, and he/she need have no specialist knowledge of your condition or it's usual effects. If you don't think you have a chance of scoring 15 points, you could consider whether you meet the criteria for work or work-related activity causing a substantial risk to your or your colleagues health - ie. if requrired to work (it doesn't have to be full time or in your usual occupation) would you be at substantial risk of injury or making your condition worse?

 

Whilst medical evidence might help, unless your GP knows how your condition affects you and can give information on how the criteria apply to you, then a letter from them at this point isn't likely to be of much use.

 

Get reading, make a note of anything you don't understand or would like someone else's perspective on, and come back with more questions.

 

Thank you RMW. I think I posted links about filling in the ESA50 and the assessment in post #3.

 

HB

Illegitimi non carborundum

 

 

 

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Thanks for all your help. Quite frankly I was shocked when I saw the forms I completed. Absolutely useless in judging peoples various conditions which leave them with great difficulty in being able to work. I am not looking long term (hopefully), just looking for some support from a country where I have paid taxes until I can recover enough to get back onto my feet and pay my taxes again!! Unfortunately it seems like you have to be at deaths door to receive any help and I suspect even then you might struggle!!

 

The best analogy I can think of for my current situation is by mentioning a hobby. I am a very keen golfer and love the game but due to the effects of my vertigo and balance I haven't played since this all began. Could I take myself to a golf club and walk round the course with my clubs on a trolley and try and play some golf? Probably, but I would be lucky if I managed to swing the club and make contact with the ball at all and if I did it certainly wouldn't be going straight therefore potentially putting other golfers on another fairway in peril !! I would be taking headache pills half way around and that's if I managed to get half way round at all due to the extreme fatigue from not sleeping properly with the Insomnia. And forget an early start because my sleep patterns are so up and down that if the sleeping tablet doesn't kick in until 4.30am then I'll be lucky to hear the alarm!! Apologies for thesarcasm !!

 

 

As I said before if I were forced into a job (if they actually employed me) and say fell down the stairs and took out someone with me half way down who is legally at fault for that? Me for taking the job when not physically fit to do so? The company who employed me? Or the DWP for stopping my benefit and forcing me back to work? (if that happens)

 

 

I would be interested to find out if someone has already found themselves in this sort of legal situation but there again I have heard rumours that many have died after having benefits cut so I guess a bloke falling down a set of stairs isn't going to cause much concern!

Edited by Max1968
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just a suggestion I know insomnia is debilitating but from my experience ESA assessors almost totally disregard it as a limited capability for work condition....its better to stick with their specific criteria ie descriptors you need to tell them not only that you have a medical condition but why it prevents you from working that's what they want to know..aka what RMW implied in addition to what she said does your vertigo symptoms/ the net effect of insomnia symptoms (not just that you have insomnia) effect your ability to function daily like interfering with basic tasks, affects your focus/concentration, do you lack motivation/ have lack of energy/ experience exhaustion etc these would be relevant to -the initiating and completing tasks section of the ESA descriptors under cognitive functions look through all the descriptors and see which apply PLUS - Any letter your GP writes has to be relevant to the descriptors and not just something like "has depression"I know im stating the obvious mind you but hope this helps

 

 

also "make yourself a sandwich " if its like having beans on toast I understand this is not preparing a meal from fresh ingredients its deemed making a snack not a meal

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Thanks again to all for your help and advice. I have read quite a lot over the weekend (I suspect that would be deemed as having an ability to sit for long periods and concentrate!!) and I must confess I think my only chance of passing this "assessment" is to try and show that if forced into a place of work I could be at a risk of injury and/or making my condition worse.

 

 

A couple of questions if I may :

 

 

**Would this assessment have come round anyway or have I accelerated it's coming by refusing to attend the work focused interview at the Job Centre last week? Just seems a bit strange the letter came through just days after finding out the work focused interview was voluntary attendance?

 

 

**Would attending by train be a black mark against you? I don't trust myself to drive long distances and train and then walking the 300 metres to the Assessment Centre is my only option. Well as I don't walk in a straight line these days make that 500m metres!!

 

 

**Would failing my PIP Assessment be taken into account? Do they share information between the two? After all I scored only the 6 points on that and that was for wearing a hearing aid and whilst I am unsteady with the vertigo more now than I was then I can exist between vertigo attacks. Yet answering that you can exist and perform normal every day tasks between attacks I guess would give me a low score yet I don't want to be untruthful and say I can't do something if I can.

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im not sure but can you get a cab there with receipt and get reimbursed? also they always say that you are able to use public transport on the day and use that against claimants in their WCA write up.....

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You are supposed to have a WCA within the first 13 weeks of your ESA claim, so yes, it would have come around anyway.

 

If at all possible, you must take someone with you and make it clear that they are there to support you with the journey - definitely do not drive yourself, but if it's reasonable to walk from the station then walk, but your support person will of course make sure that you're 'not straight line' doesn't take you into the road or that you don't lose your balance and fall in front of a car etc. If you really need a taxi, you must get approval in advance in order to reclaim the cost, but you will be able to reclaim your train fares regardless, and that of your necessary companion.

 

Basically think about what you might be expected to do in a work situation (remember it's any work, not your usual employment) and list all the possible risks of you doing it. This also applies to the descriptors - whilst you may be able to walk more than 200m so not score any points, can you do it reliably? Reliably means safely, in a reasonable time and to a reasonable standard. This is only one example of course, but if it takes you twice as long as an average person to cover that 200 metres because of your wobbly path and there's a significant risk that you'll fall or trip or otherwise injure yourself or someone else, then you can't do it reliably and should score some points.

 

When explaining your condiition to the assessor try to use the word 'risk' as often as possible without sounding like a stuck record and make sure you're given time to answer properly - avoid yes or no answers, and if you get cut off by them moving on to the next question stand your ground and insist on answering fully.

 

Even at this late stage you could ask for your assessment to be audio recorded (so long as you do it before you actually arrive at the centre) but if you do, your assessment is likely to be postponed because they don't have enough equipment to go around so have to move it to where it's needed which seems to take a ridiculously long time. Recording yourself by any means other than their approved dual cassette or dual CD devices is not allowed, and if you're discovered recording covertly you will be asked to stop and if you don't, the interview will be terminated and recorded as 'failure to participate' with consequences regarding future benefit payments. Some people use their mobile to record, there are many apps available, openly placing the phone on the table but of course switching it off record if asked. Some people also have a second phone in their top pocket for example which is also set to record, as once they've asked you to turn one phone off they often don't even consider that you might have another. The point of recording by arrangement is that it tends to focus the Healthcare professional into doing a really good job of allowing you to answer properly etc as they know the recording could be used in a tribunal. Covert recordings can also possibly be used, and would certainly back up any issues you might have with how the assessment is conducted and recorded. There are many people who, when they get a copy of the report, think they must have been sent someone else's by mistake as it bears so little resemblance to what actually happened.

RMW

"If you want my parking space, please take my disability" Common car park sign in France.

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You would have had to attend an assessment at some point so it is probably a coincidence that it has arrived after you declined a voluntary interview. The PIP and ESA assessments are different entities performed by different companies these days one is not dependent on the other. Failure in one will only be mentioned if you introduce it yourself. Both PIP and ESA are about how your illness affects you which is what they want to know. You can take any method you choose to get to the centre, I am not sure if you have to get their agreement in advance to use a taxi but if you get a receipt they will refund you.

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Thanks again for your replies. Rang the Health Advisory Service this morning and requested that my assessment is audio recorded and was told that if there is any problem regarding my appointment with that request then I will be contacted. So basically if I hear nothing just attend. Not sure what happens if they tell me at the assessment that no audio is available because it is down as "Not a legal requirement" in their booklet. I might have an old tape recorder lying around as I am not on the internet with my phone.

 

 

Getting someone to support me down there is impossible really. The only one who could is my mum and she is worse at walking than I am!! It's not a severe swerve I suffer unless I am in the middle of an attack just more of a drunk swaying side to side!! I have had to learn to live with it really because I live on my own. My concern would be that someone supporting me is a bit overkill and disrespectful to those who really do need someone supporting them, plus I would not feel comfortable walking to a shop on my own in case someone was hiding in the bushes armed with a camera!! Same with the taxi. I can manage the train I just be a bit more careful than I would if I was in normal health. This is the annoyance for me about the whole process. There is just one extreme and another and if I lose benefit because I am being honest then whilst a crushing blow at least I can look myself in the eye and try to move forward rather than know I only passed because of being dishonest.

 

 

I will however at the assessment ask that if forced back into work and sustain an injury through an accident who would be legally liable?

 

 

BTW is there any benefit in calling the CAB at the current time or are they best used after the assessment?

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With regards to the audio taping, it has to be with two tape recorders producing a synchronous record of the conversation, one of these are kept by Maximus and the other retained by the claimant. When anyone refers to having someone support you, this can mean someone to observe the proceedings as much as help a person physically as some find the process daunting and don't recall everything about the WCA. It's a matter of choice as much as anything. CAB can be used anytime but since you are so far along in the process you might want to wait until you have the results of your WCA.

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Hello there.

 

It might be worth ringing the assessment centre the day before to ask if the recording facility will be available. You don't really want to turn up and find that they've messed it up.

 

HB

Illegitimi non carborundum

 

 

 

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