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

[reallymadwoman]

From memory, less than 20% of mandatory considerations get a decision overturned, but for ESA tribunal appeal success rates are still quite high, in other words you have far more chance of success at tribunal than mandatory reconsideration. Also, what have you got to lose? As soon as your appeal is accepted you go back on assessment rate ESA (if you provide fit notes from your GP) and so don't have to jump through any hoops at the jobcentre.

[honeybee13]

Max, I can't read one of your attachments very well because the font is quite small. pdf works better than jpeg on CAG's system if you're able to reload the images at all.

 

If you think you have a case, I would go to the tribunal. As RMW says, they look at things from a different perspective and often find in favour of the claimant.

 

HB

[Max1968]

Thank you.

 

 

Honneybee, I hopefully converted them so hopefully now in PDF.

PDF 1.pdf

PDF 2.pdf

PDF 3.pdf

[reallymadwoman]

As is almost always the case, DWP go with the WCA report no matter what other evidence you send. Tribunals know that if they prefer the WCA they have to provide detailed and logical reasons for disregarding other evidence or they will make an error of law, so they tend to properly consider and weigh all the evidence, and they also tend to pay far more attention to reliability criteria.

 

Where DWP say they can't see why you would have more accidents at work is a prime example - anyone with any sense knows that someone going to work every day is going to be exposed to far more opportunities for accidents in general than someone who mostly stays at home, so their logic on that point is actually barmy.

[Max1968]

As is almost always the case, DWP go with the WCA report no matter what other evidence you send. Tribunals know that if they prefer the WCA they have to provide detailed and logical reasons for disregarding other evidence or they will make an error of law, so they tend to properly consider and weigh all the evidence, and they also tend to pay far more attention to reliability criteria.

 

Where DWP say they can't see why you would have more accidents at work is a prime example - anyone with any sense knows that someone going to work every day is going to be exposed to far more opportunities for accidents in general than someone who mostly stays at home, so their logic on that point is actually barmy.

 

Do you know , you have made more sense in five lines of comment there than the DWP has shown in the history of mankind!! That's a compliment by the way.

 

Wholeheartedly agree. They also seem to be totally oblivious to not just the risk side of being at work rather than home but also liability for that risk. If I have an accident at home it is only me affected and only me that has to weigh up that risk. For example walking up the stairs is down to me, that's my decision and if I fall down the stairs then it's my decision that has caused that. If I fall down the stairs at work when I believe I am not fit for work who is liable for my accident? The DWP for declaring me fit for work, the employer for employing me or me for accepting that job albeit under duress? Therefore as I have also said before there is a big difference between the DWP finding me (or anyone for that matter) fit for work but am I going to find an employer who will employ me?

[Max1968]

Crazy, crazy, crazy!! If I didn't already know that the system is totally broken I received proof today. Went to see The Shaw Trust and after speaking to them about my conditions they stated that they could not help me in finding work because no employer will currently employ me due to me not being able to guarantee that my condition would not affect my attendance, ability to do the job and also health and safety fears. Which of course I knew already!!

 

 

So, The Shaw Trust who work in partnership with The Job Centre (Department of Work and Pensions) to get people off benefits (she told me that) say that no one will employ me, but The Department of Work and Pensions declare that I am fit for work!!

 

 

You couldn't make it up!

[reallymadwoman]

Have you got that appeal in yet?

[Guest Miss Anxious]

This happened to me in 2010, not fit for work and DWP saying I was. I persevered and learned how to fill out the forms properly using the Benefits & Work website.....I am still on ESA, recent paper assessment, and they have placed me in the support group..... I have not had a face to face since 2010......although there was a 2 year deferral because of the backlog, and Atos squirming out of their contract....so maybe I'v e been lucky? Who knows, it's almost like "the luck of the draw"!

 

So I would say, battle on, try and get some support for the tribunal, if you can. Not always easy I know.

 

But wishing you the best of luck.

[Max1968]

Have you got that appeal in yet?

 

 

 

Not as yet but I am seeing the CAB on Thursday so will do it all then because they have the appeals pack etc. In the meantime I have to pull out of an interview that I got a few weeks ago when I thought I was improving and looking at the Job description I would be wasting both their time and my time by attending.

 

 

There is also a little part time job locally doing stuff on computer that I could probably do a lot of the time but on the application form it asks "please give a brief explanation of periods of unemployment". This is where we have the difficulty that the DWP don't seem to understand. Tell the truth I am stuffed, lie about it I am stuffed.

 

 

Thank you Miss Anxious.

[Guest Miss Anxious]

Just a thought, if you could afford the time and money...go to the interview, be honest, get them to write to you to tell you WHY you were not offered the job? Then you have ammunition.....

 

only a suggestion.....

 

My friend was told to "lie" at interviews and not tell potential employers her medical conditions......scandalous is an understatement!!!!

 

If you've got someone at CAB who knows what they are talking about, I would hang onto them if you can.....best wishes....Miss A.

[Max1968]

It certainly would be an idea but I think that this one is where 50 odd people turn up and it's all pre training, measuring for uniforms etc. Probably not the best job interview to try that, but certainly one for the future.

 

I sympathise with your friend, it is scandalous, although by signing up for Jobseekers we are kind of lying anyway because we are unfit for work but by signing on we are deeming ourselves fit for work. Remember that fella in Scotland who kept his condition of blackouts a secret because he was worried about losing his job, then has one and ploughs a dump truck into a load of people. That's why I am telling the truth from day one because if you try and hide it to any potential employer you will get found out anyway. By telling the truth the liability is on the hands of the employer or the Job Centre, hence why an employer wouldn't hire you, although the DWP seem either oblivious to that or don't give a monkeys.. Quite frankly this is what needs to happen. Someone forced into work after being deemed not fit by a GP and then having an accident at work needs to sue the [naughty word] (pardon my French) off the DWP. Unfortunately I suspect no lawyer would take it on.

 

Been thinking today about writing to David Cameron to tell him how ridiculous this all is and how let down I feel (not the only one!!) Know it won't do me any good but might make me feel better! Do you know of anyone on here who had a rant at an MP or Government and actually got somewhere?

[Nystagmite]

Your case is ridiculous, imo! It's clear that you are a risk. When you do the appeal, you do need to focus on the risk. It just has to be reasonable that if you did something, you will hurt yourself or others.

 

I hope you manage to get somewhere.

[tommy456]

From memory, less than 20% of mandatory considerations get a decision overturned, but for ESA tribunal appeal success rates are still quite high, in other words you have far more chance of success at tribunal than mandatory reconsideration. Also, what have you got to lose? As soon as your appeal is accepted you go back on assessment rate ESA (if you provide fit notes from your GP) and so don't have to jump through any hoops at the jobcentre.

According to the latest stats from the DWP it's down to 11% of decisions that are overturned at MR , it was 40% when MR first was introduced ,

So it does appear that those who were sceptical were right in that the MR was no more than a delaying tactic by the DWP

 

As for the DWP telling DR's that further fit notes: I have had one GP obey them, most don't and if you need a fit note for the 13weeks EPS for instance they will write one out .

[Max1968]

Thank you all. I did see the CAB this morning and the gentleman was a fantastic help. He wrote down what he thinks should be added to my appeal form as to why I am appealing (attached) and I must say I couldn't have put it better myself. I just now need another letter from my GP saying my condition "isn't controlled and can't be controlled". I will see if my consultant can do the same. He did say it was a shame I hadn't got what the Shaw Trust said in writing but at the same time admitted that the fact that they can't help me find me a job is proof anyway. They will report back to the Disablement Officer at the Job Centre and I suspect it will say as such unless they just make it up and say I haven't accepted any work which I wouldn't put past them

 

 

I did ask the chap at the CAB about advice in filling an application form in for a local part time job that I have found. Just as a document scanner at a local surgery. However he said I would have to be truthful on the form and so wouldn't get considered anyway although he did feel that by applying, being truthful then getting turned down would be a good example anyway on what the DWP seem to be missing, ie that they find you fit for work but don't take into account that no one will give you a job!!

 

 

He also said by applying and "getting" the job would be counter productive anyway as I then couldn't appeal and I would lose all benefit eg JSA and Council Tax benefit for a minimum wage and as soon as it's shown that I have vertigo attacks I would lose the job and end up back at the start. This again shows how much of a Keystone Cops Comedy disaster the DWP are. I am beginning to wonder if the DWP are run by the Chuckle Brothers or similar!! Clearly they exist away from the real world and live inside their fantasyland bubble.

1.pdf

[Max1968]

Just an update to say my GP has agreed to forward me another letter to help my tribunal appeal. He is baffled as to how the DWP think vertigo attacks can be controlled and/or are under control so is writing a letter to state that it is NOT under control with or without medication and is very unpredictable, hence why no one will employ me. Obviously this and the above letter in the previous post written by the man at the CAB form the basis of my reasoning to appeal to tribunal. I am hoping that my GP's letter disproves the DWP theory that my condition is perfectly controllable, which is in essence is their argument, so I was wondering if anyone has ever heard of any case where the decision is reversed from purely disproving the DWP decision by the information you send on the tribunal request form or does it always go right through to the tribunal itself?

[reallymadwoman]

DWP will sometimes back down before a tribunal, sometimes they don't back down even in the face of overwhelming evidence - once again, it's a roll of the dice.

[Max1968]

I do find the whole system leaves a very bad taste in the mouth. Unfortunately as much as he will try to avoid me paying this time it looks like I will have to shell out another £20 for a letter from my GP so that's £40 for two letters in total (Mandatory Reconsideration and Tribunal letters) at the time of writing to go to the DWP. Money that could definitely be used elsewhere when you have little coming in. I must wonder if I happen to win my Tribunal (not counting my chickens) whether there is a facility to claim for reimbursement?

 

 

The Job Centre is a joke as well. My Disablement Officer has cancelled two appointments and given me new times/dates but each time she sends a letter it doesn't actually state that she has cancelled the previous time, so it just looks like two appointments. It takes a phone call to find this out. Then there is my Computer Course that the Job Centre at least pay for. I can do this as you can do it at home but I had to attend an original assessment last week and tomorrow if well enough I have to attend an enrolment,. The assessment a week ago I was promised pre paid tickets for the train and on the day they rang to say the woman who does these wasn't in the office despite having a full week to arrange this. In the end got a lift up there. Then regarding the enrolment I was asked at yesterdays signing on to hang around because my "Work Coach" had forgotten to ask the ticket lady again so I had to sit around for half an hour despite once again them having a weeks notice with regard to the tickets. It really does beggar belief because as you will all know if we forget something we get sanctioned or worse and yet they just seem to plod along with absolutely no consideration for anyone.

 

 

They think I am fit for work, I am seriously considering applying at the Job Centre!!!

[antone]

 

 

They think I am fit for work, I am seriously considering applying at the Job Centre!!!

 

Don't do it!

 

Heh. Anyhow, as reallymadwoman says, it's possible that the DWP will back down before the Tribunal hearing, but I would make your plan based on the assumption that this will not happen. If it does, it will be a (slightly) pleasant surprise.

 

Now, when making your appeal, you should focus on how you meet the ESA Descriptors (and score the required 15 points). This is the main thing the Tribunal will be looking for. There is one other thing to consider, though. This is known as "Regulation 29", after the relevant part of the ESA legislation. Basically, Regulation 29 states:

[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.

What this means is that even if a claimant does not score the required 15 points, they may be found to have limited capability for work (that is, they may be awarded ESA) if they can show that finding otherwise would be dangerous to their safety or that of others - such as their potential colleagues. There is more information about this here. It's easier to win an appeal based on the descriptors, but I just wanted you to be aware of this regulation based on what you've said about your condition. Edited July 17, 2016 by antone
"Regulation 29", not 28

[Max1968]

Antone....

 

Thanks for the advice but this is exactly my problem. When not in the midst of a vertigo attack I probably don't meet any of the descriptors. When I do have a vertigo attack I probably meet 90% of them because I can do nothing more than lie or sit down and when I am "floating" as I call it which is permanently wobbly days after an attack I probably meet 30-40% of the descriptors,. This is the problem that the Shaw Trust pointed out. Technically some of the time I am fit for work BUT as they said no employer will employ me because I cannot guarantee that I won't have a vertigo attack at work and or guarantee that I won't be calling in sick because I have had one at home which renders me unable to go into work. They also said that it's a health and safety issue that employers will not ignore.

 

That is my quandary, whilst I don't meet most of the descriptors some of the time my condition makes me unemployable. If employers were happy to let me lie down for three hours or not come in days on end then fine, I haven't got a problem with that but this is the real world. Unfortunately the DWP just find you fit for work. They don't actually take any notice that no one will actually give you a job. I mean there are a minimum of 50 applicants to a job these days and it's hard enough getting an interview fully fit and with all the qualifications. If you have on the application form as an answer to the forms question of "what are the reasons for being unemployed for the last 12 months" of "erm I have been deemed by my GP as unfit for work, and actually I still suffer from my condition so I am still unfit for work" what chance have you got?! The DWP don't see that or they do see it but don't give a monkeys because the are too busy hitting benefits targets.

 

I don't know but my best bet is possibly to show that the Mandatory Reconsideration decision is incorrect in its findings when it says that I had not provided evidence that my condition is not "uncontrollable" or "uncontrolled". This is total poppycock, I mean I had a vertigo attack at the WCA, but that seems to have been totally forgotten in the report. My GP and Consultant are writing letters to confirm that it is not controlled by medication or any other means and is an uncontrolled unpredictable condition.

 

Doubt it will do any good because I already sent a GP letter to the Mandatory Reconsideration and that got me nowhere,. Anyway worst case scenario is that if I lose the Tribunal I will carry on claiming JSA and not getting any job because no one will employ me. Already told my Work Coach that if forced to take any job that an employer will employ me if I have an accident at work that is detrimental to my health then I will sue the Job Centre for forcing me into that situation. She went very quiet.

 

 

I just find it incredible that unqualified people can over rule or over look compounding evidence from qualified medical professionals and experts in their field. I mean I have been deaf for 46 years and even sent an audiogram in with my report because the WCA ruled that despite asking the fella to repeat himself several times and hearing my name called out because I was watching the corridor like a hawk I have in their opinion no limitations in communication and lip read. I didn't even know that myself!!!!!

[Nystagmite]

If you lose your tribunal, you can relciam ESA again.

[Max1968]

If you lose your tribunal, you can relciam ESA again.

 

 

 

Thank you I wasn't aware of that. Can you do that with the same conditions or does the condition have to be getting worse?

[antone]

The Tribunals are a lot more, well, sensible and sympathetic than the WCA examiners and DWP Decision Makers. Because you're right, of course, and it's a point I've been making about ESA for years now (including the time I spend working on it, but who's gonna listen to a mere processor?) - it's not particularly useful to deem that a person is capable of doing a theoretical job that doesn't actually exist in the real world. All this nonsense about "looking at what you can do, not what you can't" is just a smokescreen. The only valuable question to ask would be "is there actually a chance that someone will employ this claimant in the present labour market conditions?" Very often the answer is an obvious "no".

 

Still, that stuff is above my pay grade, and always was. It's something that even the DWP can't really fix. We'd need better politicians to deal with it.

 

So, political grumbling aside, I'd say that first off you should not assume that the Tribunal will merely "rubber stamp" the DWP decision. They overturn DWP decisions reasonably often. And secondly, the Reg 29 thing does seem like it clearly applies to you, even if you don't score 15 points on the descriptors. We've seen (here on the forum) some people awarded ESA on a Reg 29 basis, but I don't know of anyone who's actually gone in and argued that from the outset. This is why I say it can be tricky, but if you really don't meet the descriptors and yet are clearly not going to find work any time soon, it may be your best bet.

[Max1968]

Hi all, I have finally received another letter from my GP to attach with my Tribunal appeal. It clearly states that my condition is unpredictable and uncontrollable that flies in the face of the Mandatory Reconsideration decision but we shall see I guess if it makes any difference.

 

Need some advice though on another letter I have received. My consultant sent me all the letters to and from himself and GP and a Vestibular Test Consultant. Most of it is fairly useless as I already have it but there is a Vemp Test Report which I haven't seen before which I am wondering whether to include or not?

 

There are a load of graphs and test results which will be noting more than confusing to the untrained eye and yet an interesting paragraph that states "Bithermal calorics identified bilateral hypofunction and additionally some asymmetry with a 35.6% weakness in the left ear" and then it mentions that there is a "significant compromise to the peripheral vestibular system although it does not appear to have affected either the saccule or utricle and because of that it would suggest that both the superior and inferior aspects of the vestibular nerve are functioning to some extent.".

 

If you google bilateral hypofunction it shows it is a pretty debilitating condition and I can recognise it symptom wise warts and all so anyone with no knowledge of vertigo and it's symptoms can read up pretty much everything about what I am experiencing with the condition. However at the same time some of the Vestibular tests that I undertook showed normal response in some areas so on the one hand my horizontal balance is shot to bits but on the other hand it could be worse because I test normal in other areas,.

 

Knowing what the DWP are like with regard to their lack of interest in conditions and their diagnosis I am wondering if it is worth including this report in my appeal pack? My concern is that they will just look at "normal" here and "normal" there and ignore the parts that are abnormal responses even though for example the fact that certain areas are normal is the reason why I end up totally incapacitated some of the time rather than all the time!!

 

So just wondering if you would advise sending a Vestibular Test Report or not bother. I guess I could take it to the Tribunal instead and point out bits that matter?

 

Thanks for your help as always.

[reallymadwoman]

I'll agree that your estimation of what the DWP will make of the report is fairly accurate. Wait until closer to the time and send it to the tribunal as part of your complete 'bundle' which could easily include the explanation of your condition if it's one the panel aren't likely to know much about.

 

Even if you've already sent most of what you want the tribunal to consider, there's nothing to stop you putting together a complete, indexed bundle with pertintent bits, such as your GP report, at the front and with the most relevant sections highlighted - in other words make it easy for them to find the information which will be most helpful to them.

 

Perhaps another contributor can confirm what the time limit is for submitting evidence to the tribunal and how many copies you need to send.

[Nystagmite]

Perhaps another contributor can confirm what the time limit is for submitting evidence to the tribunal and how many copies you need to send.

 

For DLA, it was up to 7 days before. I imagine it would be the same for ESA.