A Having problems getting ESA85 Statement from recent WCA

[honeybee13]

Guys, bailio might be someone we know already........ Can we get back to helping tommy456 please?

 

HB

Edited July 24, 2016 by honeybee13

[speedfreek]

I'd be celebrating as DWP/Maximus have just dug themselves into a hole. Start going through their evidence and list everything that is 'inaccurate' and identify your proof e.g. 'transcript line 33'. Enough factual errors in the evidence means that the tribunal really has no choice but to disregard it as unreliable, since if they don't without very, very good reasons it's a strong candidate for a further appeal on grounds of error of law.

 

When organising your evidence, which would include the list of inaccuracies, I've read advice that you should focus on the most crucial errors and inconsistencies rather than pick up every single point. I would prefer to mention every single error, but organise it so that the most important are at the front of the list. For example, the report for my PIP claim omitted any mention of 5 pieces of evidence, 6 medical conditions and 2 consultants on the first page, all of which are such crucual factual errors that a tribunal probably wouldn't even have to consider anything else in order to chuck the whole thing in the bin. However, tribunals have been known to make errors of law, so I would still list every single other error, no matter how trivial, but leave the really trivial stuff (spelling your admittedly complicated name wrong) to the end.

 

I fully intend on doing just that , i will be listening intently to the audio recording and comparing with their paper work ,to see what else is wrong ,

 

Do not under any circumstance do this

 

Your mission is to explain to the Tribunal how and why you score points for each descriptor (or how you hit a special rule) which is why you qualify for ESA.

 

You do this by collating your evidence (GP records, phone a friend, note from your mum, whatever) and presenting it in a way which says;

 

I believe I score X points under descriptor Y because.........see attached GP record page backed by a note from my mum.

 

What you are trying to do is give weight to your evidence over what ATOS/Russell Crowe in Gladiator have written and the DWP have taken as 100% verbatim.

 

You then add a brief and I mean brief explanation of why the DWP interpretation of/ESA85 report (is it still?) has got it wrong and why......

 

Job's a good un

 

I honestly believe that the reason these reports are so bad is too get you so riled up that you forget to argue the points but write a 50 page diatribe about the report

 

I had my 3rd face to face WCA 2 weeks ago so..... 3rd time lucky or like the Eurovision song contest Speedy UK nil pwonts

[tommy456]

Well i will be doing this and noting the time on the recording so my Cab Adviser can listen to the points i raise and if any of those errors & omissions on the paper evidence could affect the outcome of tribunal they will be brought up as they would be an error of fact,

 

But without me doing this the DWP get away with their lies which make me appear to be as fit as an athlete , And sadly many tribunal panels appear to accept the DWP /Maximus evidence without question, so if it can be shown to be inconsistent then surely that should give a better chance of success?

 

 

Medical evidence from my GP is about as good as can be expected , he has answered a lot of questions asked by previous tribunals , like why no specialist input for some of my conditions and use of aids and why they wouldn't be or aren't suitable ,

 

Due to some of my conditions being intermittent they will need to be some evidence that they affect me most of the time, so I'm doing a diary recording when I'm affected and where i am at those times ,

My conditions aren't like a broken limb in pain most of the time, and unable to use it , that is i feel costing me appeal after appeal

[Bazooka Boo]

But without me doing this the DWP get away with their lies which make me appear to be as fit as an athlete , And sadly many tribunal panels appear to accept the DWP /Maximus evidence without question, so if it can be shown to be inconsistent then surely that should give a better chance of success?

 

Most tribunals, are in fact, IMO and by experience, much more likely to rip the lies of the WCA and that of unqualified fake HCP's to pieces, when you consider the sheer amount of cases that go to tribunal and get overturned, that in itself should speak volumes as to just how corrupt and rotten to the core the whole scandalous system is.

 

How much money has been wasted by the DWP forcing the sick & disabled to go to tribunal simply because IDS and his criminal cronies want to save a few pence.

[tommy456]

Well i trust none of them even the tribunal panel members , as from my experience know that some aren't on the side of the appellants (especially when they act outside their remit to disallow a claim) and all the appellant gets is a set aside, that in its self is wrong , the case should of be found my favour and the panel members sacked

 

The tribunals service isn't perfect and is probably a long way from that , some of them are bias in favour of the state/establishment

[jason2723637]

wanted to ask tommmy or anyone with audio recordings did you get a CD or cassette? my friend once got a tape after the WCA how do you play either at the Tribunal if you need to?

 

did you also get a transcript of you entire recording in the bundle

[tommy456]

The audio recordings that i have had both have been on CD's the duel tape machines i think have been phased out ,

[jason2723637]

can you play a CD at tribunal?

 

did you get a transcript?

[tommy456]

no transcript, you get a copy of the Audio CD before you leave the wca as the machine records and burns it onto 2 cd's simultaneously ,you also get sent a copy of the ESA85 (WCA HCP's report) with the rest of the paperwork bundle which they send as normal once the tribunal has acknowledged your appeal

 

As for submitting the cd for evidence yes but you have to inform the tribunal service in advance as they will have to request 2 or so further copies from the DWP so they can listen to it before the hearing if they wish, this can delay the appeal being heard as if they decide that the whole recording be played back then a new date with the extra time slots would be needed, so 30mins for hearing +30-60 mins depending the length of the recording so a time slot of 1hr 30mins in total so 3 sessions in their terminology obviously with breaks

[jason2723637]

ok thanks

[tommy456]

After listening to the WCA audio recording and comparing what has been written in the ESA85 and dwp decision makers reports,

 

there are lots of omissions in both ,which have been purposely left out to fit their agenda

 

imo, the decision maker also makes reference to case law, regarding WRAG and the activities available to me in my area, and talks about a list of them,

 

but there is no list recorded in the bundle, this could be that A4E (Now People Plus) have closed their office in my area, and as far as i'm aware there isn't another WP provider here, nearest being around 15 miles away ???

[reallymadwoman]

I remember reading a tribunal case where they were considering whether work-related activity would cause harm to the claimant, and said that if the decision maker was saying it wouldn't they had to give details of what activity would be required.

 

If you're arguing 'risk of harm' regs apply, then omitting details of the activities you would be asked to undertake is likely to be another point in your favour

- how can someone say an activity will not cause you harm if they don't know what that activity is?

 

I don't have time now (going into hospital this evening for major op tomorrow) but if you search through tribunal decisions you will find it yourself if no one else pops along and gives you a link. I can't even give you a link to find the decisions as I use a paid for site to access them.

[speedfreek]

Have a search on the rightsnet discussion board.

 

The DWP have had to come up with a list of all possible WRA as there was a big tribunal win last year that argued;

 

since the DWP can not say exactly what WRA was

 

EVERYBODY was covered by reg 30? so should be in the support group.

 

It was a bloody good argument tbf!

 

Not sure where you find a copy of it but it's out there.

[tommy456]

Just found this generic list of WRA and ingeus is mentioned and they aren't listed on their web site as being in my area either, as if or not they can still utilise the JC i don't know , I found this but it probably isnt the same one http://www.rightsnet.org.uk/forums/viewthread/7120/

 

Also to add further info, ingeus no longer have an office here just as people plus (A4E) no longer have

The nearest offices for both are around 20 miles away,

 

I was some time ago informed by my work coach that my local JC+ has a job club , but this is situated on the first floor,. (can't do stairs) which apparently was why they didn't mandate me to attend that,

 

unless there are any other waste of time wra groups in my area ,

there's not reality anything suitable as such ,

maybe the tribunal should be made aware ?

or could that make things more difficult?

 

As it has been suggested to me by my CAB adviser to start a diary of how each of my medical conditions affect me day to day,

 

How much detail is needed ?

[honeybee13]

Hi Tommy.

 

This is from the forum stikky about PIP and DLA and keeping a diary, I'm thinking it wouldn't be much different for ESA.

 

Hopefully people will tell me if I'm wrong. Here's a link,

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?457126-DLA-Pip-12-point-diary(1-Viewing)-nbsp

 

HB

[tommy456]

Thank's , not sure if that would be suitable for my conditions,

 

Here is an example of what i have written

 

22/6/16 walking to local shop knee locked up had to stop for a few mins for the pain to subside, shop is 40mtrs from my home

22/6/16 knee painful for most of the day i stayed indoors

Is that detailed,useful enough or not, ? I'm struggling to articulate what i wish to know in a better way

[honeybee13]

I think that's a good start, Tommy, hopefully others who have kept a diary like this will add their comments.

 

Could you add more about what you had to do after your knee locked up and before you went home? And once you were back home, did it stop you doing things you would normally do?

 

HB

[tommy456]

After knee locked i had to stop walking ,

manipulate it with my weight off it,

and stand around like a lemon whilst pretending to be interested in what was in the window of the shop was stopped outside ( row of shops)

 

It didn't lock again on the way home , but was painfull walking on it, at home didn't really affect or stop me doing anything apart from moving around in my home, preparing & cooking a meal, or making a cuppa,

 

When i was having to signing on , JSA awaiting MR the knee also locked quite a few times,

and the knee was painful all the next day,

though it didn't stop me pottering around in my home i was in pain when i bared weight on it even standing still

Is that too much, as imo some of that maybe considered irrelevant ??

 

Due to the knee & foot problems (OA,) I can't walk very far like i used to do,

as a result i have gained a lot of weight over the past few years,

 

this as well as increasing the stress on my knee joint and foot,

is now also having an impact on my general health,

 

My BP was through the roof last month,

had the full blood count ,

all in normal ranges, 24hr bp monitoring and result of that was high BP ,

 

due to weight gain, so referred to LA fitness course, hopefully they can devise some low impact exercises that won't cause problems with my knee, and i can shed a quite a few pounds and lower the BP as BP meds are possible best avoided.

 

My GP could have prescribed a drug to make me eat less, but one of the side effects isn't pleasant and i have IBS ,so would probably make be toilet bound and cost me a fortune on loo rolls

 

I must admit i did think the idea of keeping a diary (to make reference to at a tribunal hearing or is it submitted as evidence ) was common practice ,and as no one has offered any advice maybe i was wrong

 

All i can do is document each time my knee locks causing me to stop moving ,and what i was doing or where is was at those times same for the other diagnosed conditions , all my CAB adviser has said is the more details in it the better , as that should paint them a better picture showing that although these conditions affect me intermittently it will show how frequent that they are to back up what my claim and probably show that I'm affected most of the time

 

As for the conditions stopping me from doing things they already have some info regarding that , as for a hectic social life far from it but that isn't really down to my health but by choice & financial reasons mainly,(£73.10 pw) doesn't allow a social life but if i did have such a social life i can see that it could well have some impact on that as it would for some hobbies

 

Well after submitting diaries GP letters and having the help of a CAB adviser , yet again i failed to score enough points at the tribunal hearing, Why they didn't award me 15 points for at least one of the descriptors i claim to satisfy and had provided evidence (imo sufficient evidence) that could be reasonably expected by them, yet they would appear to have ignored what i have said Maybe cases like mine need to go to UT to get the correct decision ???

[antone]

I'm sorry to hear of this. If you do plan to take the case to the UT, make sure you get decent legal advice, as UT cases are not straightforward and success depends on your being able to show that the lower tier erred in law.

[tommy456]

Will have to see what they put in their S.O.R ect, But in the meantime i will probably re-claim with a new condition, as i cannot hack the JSA nonsense, especially having to sign on each week,

 

Been having a think and reality check, and it seems that the CAB are a waste of time,or the person that i have acting on my behalf is, Every time the tribunal ect come up with a argument to counter my claims , they just agree saying they can see their point ,

 

why aren't they predicting this prior to a tribunal? after all they have seen enough to know how this corrupt system we have works, even legal aid solicitors will do this automatically , well those that are worth their salt will, information if not prsented in the way many of these part time tribunal panels expect you loose, how can this be justice?

[jason2723637]

also not sure how relevant this example is for you bt I thought you stated in earlier threads you cant use crutches or wheel chair-

 

The HP has stated that I have good upper body strength and the decision-maker has stated that I can

 

use a wheelchair to mobilise a significant distance.

 

However, I don’t have a wheelchair. I have been advised to use crutches or sticks as I need to take

 

some weight off my feet. My hips are damaged by my gait and I have been told by my

 

Physiotherapist that if I was to use a wheelchair, my feet would seize up and I would be in more

 

pain. I am trying to delay using a wheelchair to prevent my condition from worsening. I have not had

 

any NHS or Occupational Therapy recommendation to use a wheelchair. I live in a house with stairs

 

and a wheelchair would not be practical currently.

 

In the case CE/3431 2012, the Judge stated that:

 

“The tribunal should approach this descriptor, as any descriptor, on the basis of the evidence beforeit.

 

It appears to have gone ahead to consider the use of a wheelchair without first deciding if in its

 

view aids are reasonably needed by the appellant for mobility.”

 

I enclose a letter from my Physiotherapist which confirms that it is not reasonable for me to use a

 

wheelchair currently.

[tommy456]

They awarded 6 points for the mobilising descriptor,

I have a weak wrist from an old injury where i'm unable to bear weight on that wrist ,

the knee is on the opposite side, hence why i couldn't use a walking stick or crutch even,

 

but the tribunal asked why i couldn't use my other arm ,

But this doesn't address the fact that if i were using crutches it couldn't mobilise as quickly as i could without them, my knee randomly will lock/catch as i'm walking without warning, as a result i have to stop and take my weight of it and move my knee cap with my hands, before i can continue,

 

More recently i have had x rays on both hands /wrists although there isn't any OA changes visible my GP from my description of pain in my hands has diagnosed early onset of OA in my hands (thumb/ fingers) but that couldn't be used at the tribunal, as they will only decide on the evidence on the date of the WCA,

 

I feel that by trying to put as much detail/info in my diary of daily activities and how the conditions affected me, such as including in it that i signed on JSA whilst awaiting the MR , may not of helped or had an adverse affect on things ,

 

Anyone would think that ESA was paying £500 per week the way they have set up the criteria for awards, since it got changed from IB, and that was stringent enough

[Nystagmite]

I'm confused why you'd walk to the tribunal if you have walking difficulties? I wouldn't. You're just backing up their point.

[tommy456]

but on the other hand by not attending and having it done on paper the success rate is even less, damned if you do and damned if you don't,

My claim was that i could mobilise upto 100mtrs sometimes less so not reliably or repeatedly

They appear to have an answer for everything ,

 

You could also say the same thing for the F2F farce , by just going there you fail. all the rest is there for show, even with a home visit if you answer the door too quickly they will claim you are an athlete

 

My mobility issues have started having an impact on my general heath this past year weight gain ,and raised BP reached stage 2 Levels some 6-8weeks ago, i have gained several stone, this also isn't helping my knee joints

 

Then there is the continence descriptor , Due to IBS whilst they may find it difficult to except that all the GP's over the years that i have had issues have not investigated , ie endoscopy , or use of Pads

My GP has said that because there isn't any red flags he is happy that it is no more than IBS and doesn't see the point in putting me through endoscopies or even the less invasive tests barium swallowthat would only confirm what we already know , there are also risks with both procedures

 

As for pads GP believes that they would restrict my mobility further, and wouldn't prescribe them unless i was bed ridden or less mobile than i am but they just don't get it ,the points were unchanged from the dwp's decision 6points

If though i had documented more than once a month accidents , basically they know better and can prove that i was lying , because they have as good as done that without any real evidence

[jason2723637]

I think he means take a cab or get driven right to the door of the assessment centre

 

I meant assessment centre and/or tribunal