A Having problems getting ESA85 Statement from recent WCA

[tommy456]

Had a call from the consultant who got my knee x-rayed again and he basically informed me that the knee joint has a severe arthritic change and the only cure would be a full knee replacement , So to all those in the establishment who thought i have been swinging the lead you have been proved wrong, now i want what is owed to me

[estellyn]

Any back pay would only apply until the date of the first new claim, assuming a positive decision at the new hearing.

[tommy456]

Thanks for that, If i qualified to claim under the my condition has worsened clause,would this still count as a new claim, or would it be a continuation of the existing claim ? as until now I and my GP didn't know how bad the knee joint actually was apart from it being affected by OA , which the first X-ray showed some 3 yrs ago

 

The possible problem with that is the first x-ray wasn't digitally uploaded to my records, So my question is does it still even exist should they need to be compared to determine that the OA has gotten worse /knee joint cartilage worn further

 

Well with regards to the next tribunal hearing which is the most likely outcome from the UT,

The CAB have offered to help me prepare my case, they may even go with me next time,

they have also offered to help with any future ESA50 questionnaires,

 

Which tbh i have always seen as a bit of a joke and pointless exercise,

gave sparse details, As the likes of ATOS probably take little notice of what someone writes regardless ,

 

All or nearly all will still be mandated to attend the face 2 face farce aka wca, only to be asked the same questions over again

 

No doubt they will try and use my choice of deferring knee surgery until hospitals are free from things like superbugs, post op infections & new antibiotics to treat these resistant strains are found, against me,?

 

My local hospital doesn't have a particularly good record or ratings, Also there is my age, as i do not wish to have to repeat a knee replacement in later life ,it would be a one time only event as far as I'm concerned ,

 

Plus there are also new methods of getting greater accuracy for the positioning of the artificial joint that should mean a greater chance of a success first time being explored unlike the system used today that's why the thought of hospitals and surgery scare me

[estellyn]

No sorry it would still be treated as a new claim.

 

With regards to the surgery, you can't be forced to have surgery, or have benefit withheld for refusing surgery (at this time). Some conditions are being unfairly clamped down on, but arthritis isn't one of them.

[tommy456]

Just had a letter from the tribunals service which says that the ut doesn't need to hear this case, but it will be re heard by the LT and those who where present at the last hearing are excluded from the re hearing,so blank canvass So i would imagine that ESA at pre assessment rate would be payable again technically,until appeal hearing ?

 

Although ESA has not been stopped ,Although to cover myself from the overpayment nonsense i have told them at the call centre at least twice that i had lost the appeal ect, and wanted to check the status of the claim, as didn't want a long gap without payment, they told me that they would e-mail the benefit centre my concerns, I did my bit IMO

 

the last tribunal's error in law was, the way that they had conducted the appeal, they in the statement of reasons & proceedings said that they had observed me at the hearing and after it not using a walking stick and walking normally ,

 

they didn't give me the opportunity to comment at the hearing, then there was their somewhat sneaky idea, of observing me walk to the rail stn, again as this was after the hearing i was not given nor was it possible for me to be given the opportunity to comment, so my human rights where breeched (right to a fair trial)

No wonder that this tribunal court has/had the lowest success rate's for the country or came a close second for ESA appeals

[estellyn]

Have you made a new claim yet?

 

If not then yes the old decision is null and void and assessment rate esa, I guess, should be paid. It's not a situation I've dealt with, so how it's dealt with in practice - as in how easy to get reinstated, I don't know.

[tommy456]

Nope as they are still paying ESA@ the pre assessment rate,

 

Like i said i rang them to enquire if the claim was still live,

and informed the agent that my tribunal had failed some months ago,

and was ringing to find out when the current claim was likely to end, in order to avoid the gap in payments,

 

although i have been providing Med 3 certs (fit notes)all through this period was told that it was still live .

the agent said that he would e-mail the benefit centre my concerns ,

and that was that,

 

How can i make a new claim for ESA if i already have an active claim ?

 

Interestingly though my last ESA payment was paid early for some reason and was listed as JSA on my bank statement .odd ,

 

but maybe the DWP have decided to use common sense for a change, and maybe they aren't forbidden from doing so yet ?

[estellyn]

Phone up and let them know the Tribunal decision has been set aside and that you are therefore still awaiting a tribunal and that assessment rate esa should continue. Follow the phone call up with a letter and copy of the set aside decision.

[tommy456]

Sorry for the delay in updating my case,

there hasn't really been much to report,

Well HMCTS Set aside the last decision,

 

I now have the help of a CAB case worker,

who did spot an error in law,

from the statement of reasons ,

 

but wasn't as obvious as the distance they observed me to walk,

but the fact that they used this to influence their decision and because more importantly because it was after the hearing had concluded,

i wasn't able to respond to this,

 

Had they observed me walk to the tribunal and questioned me about it ,

then it would of been ok ,

because i was there and had the opportunity to respond (have my say,explain ect )

 

Since then i have had my knee re- examined and x-rayed ,

and have the specialists report from my GP which confirms how badly my knee is affected,

and his prognosis ,

A full knee replacement is required

 

Also the case worker has listened to the audio recording of the ATOS WCA and apart from one point that is somewhat contradictory to what the so called HCP wrote in the ESA85 report there doesn't appear to be much wrong with it,

 

But she has written that i was observed during the WCA to sit for 1 hour without pain ect,

when the CD is played the total time that i remained sitting is less,

as it can be clearly heard that she asked me to stand up before 1hr, and the total length of the recording is 1hr,

 

Not a very big discrepancy

,but feels that the tribunal should have all the facts,

she also in the written report makes lite of the fact that i had to stop and manipulate my knee due to it locking on the way from the waiting area to the interview room ,

[tommy456]

Well following a few adjournments where the appeal couldn't be heard for technical reasons with the playback of the Audio recording of the WCA

 

The appeal was finally heard ,

but unsuccessful yet again ,

 

although the panel accepted that i have the medical conditions as stated

they decided they are not significant enough to score the required number of points and gave me a big fat ZERO!!

 

now i will have to put yet another claim in for esa for the newer conditions and a worsening of the conditions since my last WCA back in 2014,

Because i did not score points doesn't mean that I'm cured nor does it in reality mean that i am fit for work,

 

And i have lost all faith in the system being anywhere near fair

[jason2723637]

what bull the system sucks I don't understand if you not fit for work your not fit for work how can they use points to evaluate that you are not???? sorry to hear this out of curiosity I assume you got all you need to get ESA again with the new six month rule in force now im not fit for work either in recovery from addiction and as you prob know form other threads waiting for my tribunal date hope my one does not end without my atos decision of being fit for work overturned

[Nystagmite]

There's a difference though. The OP, according to the tribunal doesn't meet the criteria to claim ESA, therefore, he is deemed fit for work.

[jason2723637]

yes though lots are overturned at tribunal I know here it was not I think its 60 % (is this just a quota or a case by case thing) lot here obviously know how IDS works and the cases and cases of ppl getting zero/or lower then 16 points at WCA then get overturned at tribunal (why did they get 0 to begin with if it was overturned?) some do not and this does not mean those not overturned are fit for work or have limited capability for such ie..

 

just meant the system sucks ie unfair

[tommy456]

Very unfair imo, and and is based on the opinions of judges and some unlicensed to practise DR , on the day, at my previous appeal hearing they did award some points but not enough, and as there was an error in law that decision was set aside , So it can be down to their personal opinion, if or not the refuse or allow the appeal ,

[Nystagmite]

Did you actually send them any evidence which shows you meet the criteria and score at least 15 points?

[tommy456]

A letter from my GP covering the medical conditions i have and a brief description of how they affect me,

 

and a letter from the MCAS extended scope HCP at the hospital i was referred to by my GP regarding my knee ,

which says that i need knee replacement surgery ,

as it's past the stage of physiotherapy and the injections ,

 

but still I'm cured (according to the establishment / dwp )

they will expect people to still work who are dying of cancer next the way things are heading,

the being able to carry out the various activities repeatedly and safely ,

would seem to being overlooked they are breaking their own rules imo

[Nystagmite]

DWP aren't saying you're cured. There's a huge difference between having a medical condition and meeting the criteria of being unfit for work.

[jason2723637]

yes criteria but according to DWP/ESA decision makers (ATOS scoring)/HMCTs (in rarer cases) own pedantic rules....

.. tommy's thread according to him does portray the reasons he's unfit for work be it to the the letter of the law ie scoring points

 

im speaking of it being in the spirit of as well as for example

- as another poster pointed out if someone can walk only 101 metres in pain then falls is deemed fit for work?

 

hence having a medical condition or health issue that you need time to recover from ie serious enough (can be open to individual interpretation unfortunately) and being "found" fit for work are not the same I know the ATOS lot don't see it this way though.

 

But subsequent appeals should imho. Were not lawyers (unless a persons occupation is such of course)

but in general were not legally qualified and don't see why need to get so technical or bogged down in the t/c's aka rules/points scoring/its not what you know its what you can prove in court type thing etc in order to get what one is entitled to.

 

At appeal we are at a tribunal not a criminal court.

 

anyway don't want to drone on to tommy hope you get you new esa going as you have a new condition and good luck moving forward

[Nystagmite]

If you can't walk unaided, you'd be expected to use aids to mobilise.

[tommy456]

But where the condition is intermittent and randomly occurring ,

carrying around walking aids with you could be also restrictive,

 

I also have suggested using something like a knee brace to my GP

but he didn't think walking aids where appropriate,

 

Similar with pain relief,

the naproxen that i was prescribed is not designed for long term use,

and there are real risks of serious side effects,

plus it didn't do a great deal,

 

my GP probably doesn't want to prescribe opiates long term,

But as i'm not constantly in pain from my knee or the pain isnt that severe unless it locks up whilst walking ,

in particular if i continue walking on it as it locks ,

But this combined with other medical conditions would imo stop me from being able to work or result in me loosing employment due to being off through sickness ,

 

this imo is the reality of it,

something government doesn't want to take into account ,

 

i doubt i could remain on JSA for long,

i didn't the last time i tried,

without ending up being sanctioned ,

 

thank's to that vile IDS and Tories

 

maybe i should try an insist my GP prescribe strong pain relief ,

a walking cane or crutch ,

that i cannot use due to a weak wrist (previous accident at work, commuted fracture) which required manipulation under GA @ A&E dept

and it likely now has OA too,

 

Though this has as yet not been investigated for a diagnosis,

as on it's own wouldn't make me unfit for work ,

 

but could be a just reason for not using walking aids ,

there are times i feel I'm flogging a dead horse,

but give up ,certainly not, If i fail again

 

i'll just invent things after that ,

i have tried being honest and like always the government screw you over imo

[Nystagmite]

The criteria is about it being reasonable for you to use aids. So, unless you've got severe upper limb or spinal problems which make it difficult to use a wheelchair, you would be expected to use aids.

 

Naproxen is, ime, absolutely crap. And there other things out there.

[tommy456]

Yes and none are good for long term use, as for numbing the sharp pain that i experience only when the joint locks up, this may lead to further damage to it , as the rest of the time I'm more or less pain free in my knee, unless i am on my feet most of the day, Because someone doesn't fit their criteria doesn't mean they are fit for work it may do in the DWP's fantasy land but in the real would it's very different,

 

It's like the disability discrimination laws , employers who don't want to spend lots of money to make adaptations to the place of work, just won't offer disabled people jobs, they as we know employers are not under any obligation to give reasons as to why they don't offer employment, even if they did they would make something up

[tommy456]

Well today i received my P45 and a letter

 

titled "A change in the ESA rate Payable

 

Then it says we have looked at your claim again following a recent change we cannot pay you ESA from / / .this is because, following the WCA medical , it has been decided that you are fit for work

 

then goes on to say that if i think the decision is wrong i can request a MR ect ect,

 

Really i can get another MR and re appeal ? Why do the DWP send out misleading letters like this?

 

It relates to my previous claim , not the new claim that i have started for a worsening of one health issue and two new issues

[Nystagmite]

You can appeal to the upper tier tribunal if there has been an error in law.

[tommy456]

Yes i was aware of that, and have already done that on a previous tribunal decision ,

I wasn't alluding to that though, it was what is written on the letter that isn't as clear as it could be,

 

It make's reference to the WCA my last was in 2014 ,i have since then appealed and lost, and they say that they have looked at my claim again and decided that I'm not entitled to ESA which i already knew on the day the appeal was heard ,

 

i doubt that they looked at my claim again , and the decision was made for them ,and i would doubt that i could get an MR which it says i can the letter imo was a waste of paper& ink as well as postage,