A Having problems getting ESA85 Statement from recent WCA

[tommy456]

Had esa appeal last week, and just found out that it was refused , but i did score some 12 points ,

 

As i have also developed new medical conditions , osteoarthritis of the right foot, and Plantar fasciitis which could be due to the existing knee problem ,

 

i have been referred to a podiatrist for a an insole for my shoe,But i can't walk 50meters without being in pain at the moment, then there's the pain the next morning if i walk anywhere the day before

 

Looks like i need yet another Fit note from my GP and have to get a new ESA claim form and go through the whole process again ,

As i wouldn't last 2 mths on jsa, I am really sick of this system that just does not work in the favour of the sick.

 

It also seems that if you don't want to take prescribed drugs (due to potential side effects) you must be ok , ?

[reallymadwoman]

I think you need to get your new claim in very quickly, assuming it's 6 months since the date of the original decision denying you benefit.

 

The rules change next month so that a decision maker has to accept that you either have a new condition or that your condition is significantly worse before they will pay any benefit. In your case I would guess you meet the criteria, but it would certainly be easier not to have to argue about it if you can avoid it.

[tommy456]

I agree, It certainly would, Appointment with my GP already booked , So I'll have a MED3 without a break as most of my medical conditions haven't changed since the appeal day, apart from increased pain in my foot due to walking from train station to appeals building and back again and having to stand on the train for 20mins as there was no seats free,

 

But as pointed out by the appeal medical adviser that they could only consider my medical conditions as they where at the time of the WCA and not any new conditions, but the fact that i was awarded 12 points undermines the fascicle WCA ,

 

I probably didn't help myself as i did give atos and the WCA system some degree of criticism , in that it wasn't really about determining if someone is fit enough to work or not ,but purely about numbers and there to deny sickness benefits toas many as possible ,which isn't telling lies as it's the truth

 

Would downloading & filling in the esa 1 form & then sent it in with the new MED3 Be quicker than ringing them and presumably them sending out a claim form for me to fill in and return be quicker ,Also am i correct in assuming that i would start a new esa claim from the next day following the appeal date ?

 

https://www.gov.uk/government/publications/employment-and-support-allowance-claim-form

[reallymadwoman]

It will take some time for the DWP to process the appeal decision, so you might not be able to process a new claim until they do. Probably best to ring them though I wouldn't normally advise using the phone.

[Nystagmite]

Being unable to walk won't be good enough for ESA. You would have to be unable to mobilise.

[tommy456]

Well if their past processing times are anything to go by they will of already stopped my esa payments, they where quick at arranging a audio recorded WCA at a ground floor centre,(which was JC + office)

and again the tribunal service was quick at giving a hearing date, the first time was just 3 weeks from receiving my application,

 

just had a look at the PDF version of the esa 1 , 56 pages!!!?? thats a insane amount to print, then there is working out the correct order of printing them so that they can be made into a booklet, (like they would send you, or isn't that bit important as long as it is complete and is filled in properly?

 

I have one question i have just checked the distance from train station to tribunal buildings using google it says that it's 77mts when the medical person at the tribunal was guessing that it was about 200 mts , and thats what i scored 6 points for(not being able to mobilise for 200mtrs repeatedly or reliably)

 

when in fact the distance was only 100mtr at most, and i had to stop twice because of my knee due to the pain in the opposite foot, which i told the tribunal when asked if i had needed to stop, Can anything be done to correct this error of the distance mobilised that they based the decision on ?

[Lapsed Workaholic]

Hello Tommy,

 

Could you please clarify the following, from your first post of this thread?

 

"Had esa appeal last week, and just found out that it was refused , but i did score some 12 points"

 

Was it the assessment or an appeal against the finding of the assessment that you had last week?

 

Was it the your claim for ESA that was refused due to insufficient points or was it your appeal against the findings of the assessment?

 

If you mean that it was the appeal against the findings of the assessment that you had last week, what was the date of the actual assessment itself and on what date was the decision resulting from it reached and notified to you?

 

Not sure how you can say in the same sentence that you had an ESA appeal last week and that you just found out it was refused.

[tommy456]

I can confirm that it was the appeal tribunal hearing against the finding of the assessment that i had last week, they did not give their decision at the end of it, which didn't come as a great surprise, As i anticipated this result as soon as they said that i would receive the decision in the post

 

which i received the decision notice today which although awarded some points (12) which isn't enough , the decision was to refuse the appeal on those grounds

The WCA was eventually conducted back in August 2014 with the MR decision result following during September 2014

 

Part of their decision was based on me being able to mobilise some 200trs from the nearest railway stn to the tribunal building but the 200mtrs was no more than a wild guess by the medical (dr)? he did not say what his qualification was, after measuring this distance i have found that it's not 200mtrs but only some 77mtrs reported by google,

 

So based on this guess i was awarded some 6 points when maybe it should been 9 points which would of given a total of 15points, and esa wrag ?

 

Can this simple error be corrected without going to the upper tier ?

 

or having to rinse and repeat (start a new claim for esa) and also miss out on the back pay that i feel I'm owed

 

© Cannot either:

(i) mobilise more than 100 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;

or

(ii) repeatedly mobilise 100 metres within a reasonable timescale because of significant discomfort or exhaustion.

Is the descriptor i feel that i meet for the osteoarthritis of the knee that randomly locks up when walking and sometimes when going from standing to sitting and vice versa, also any side ways rotation of my lower leg causes excruciating pain using steps/stairs and walking in general cause some mild pain too,

If this decision was to include the more recent medical conditions osteo arthritis of the opposite foot (big toe joint) and the even more recent problem with the same foot Plantar fasciitis i cant walk 50 paces without being in pain never mind 50 mtrs, this is also causing more pain in the knee

[Lapsed Workaholic]

Thanks Tommy for that clarification. Now that is cleared up we can look again at the point you make about the distance between the train station and the building where the Tribunal Hearing was held.

 

Your assertion is that the scores awarded were based primarily on your ability to mobilise 200 metres.

 

You further assert that the evidence presented at the Tribunal Hearing to justify the DWP's claim that you could mobilise 200 metres was that you managed the distance between the train station and the building where the Tribunal Hearing was held and which they claimed was 200 metres.

 

If you can show that the distance in question was in fact 77 metres, or considerably less than 200 metres, then it would be reasonable to claim that your assessment was based on false or falsified evidence.

 

In that case you should be entitled to have your case referred to an upper tribunal on the basis that an error in law had been made at the initial hearing, ie. the decisions made were based on false evidence that had not been verified.

 

If you do not wish to do that, I believe that it is also possible to enter another new claim for ESA straightaway if new symptoms that have not been previously been assessed come to light.

 

Obviously, any new symptoms that have not been the subject of the initial assessment may not be used in evidence at an upper tribunal hearing which will be about the initial assessment and hearing. It may, however, be possible to present medical evidence to the effect that the new symptoms are a direct consequence, or a progression, of the symptoms originally assessed but not adequately considered or taken account of at the time.

[tommy456]

it would have to go to the upper tier ?

what about payment of esa whilst i await the outcome from that, would i still be entitled to the pre- assessment rate ?

 

Then there is how do i go about proving the walking distance from the railway stn to tribunal building , or is google maps considered to be accurate enough for this purpose, ?

 

My GP is of the opinion that the Plantar fasciitis is a knock on effect of having a weak knee on the opposite side, causing me to put more weight on the other (side with Plantar fasciitis and ostearthritis of big toe joint) and has said this to me,

 

At the WCA i scored Nil Pwa 0 for every descriptor As the majority of claimants do

 

The two scores where for IBS and the other mobilising 200mtrs 6 points for each related descriptor which when i think about what my GP wrote & what was discussed at the hearing, maybe i should of been given 15 points for the ibs, as i have continence issues at least once every 3-4 weeks, something they seem to of ignored or didn't believe ?

 

because i haven't been referred to a specialist for it, probably because my GP now and the all previous GP's have all come to the same conclusion about it being IBS because i also suffer with psoriasis and have done for the past 30yrs , and nothing with clear it, apart from photo therapy, which i have had twice, but judging by my last referral to a dermatologist this is becoming harder to get,

 

Both IBS and Psoriasis are related in that they are autoimmune diseases and often a person with suffer with both symptoms

and as far as i'm aware there isn't any known cure

 

I wonder how long it has been since the doctor on the pannel has worked for the NHS, as i got the impression that he throught that MRI or utlta sound scans to confim that it was IBS are readily offered by GP's

 

As i don't like the idea or associated risks of the other alternative of having an endoscopy

[liverbird37]

As Nystagmite has pointed out, the mobilising aspect doesn't just mean walking. You have to be able to show you would be physically unable to use a wheelchair in order to score the higher points.

 

For example, I have a serious right knee injury, no ligaments, and other issues that cause severe constant pain. I am unable to put any weight on the foot. This doesn't satisfy the mobilising aspect as they then ask "could she use a wheelchair if needed" I passed this part as also have a serious lower back injury which means I would be unable to sit long enough in order to use a wheelchair.

 

You need to back up your claim with medical evidence that shows that using a wheelchair is not physically possible for you. They take into account aids that can reasonably be expected to be used now when assessing. They may say well ok, you can't walk the 77mts but you could use a wheelchair to do it. It's down to you to prove that medically that's not possible.

 

Just wanted to also say just in case anyone else is going through an appeal at tribunal at the moment. Being informed of the tribunal decision through the post is not an indication you have failed. I passed mine and was informed through the post, as have many others. They normally do this if they have a huge workload with time constraints, or if they need to discuss things further. My area tribunal don't tell anyone on the day, pass or fail. They get through all the cases first and then post out decisions at the end of day to save time. Just wanted other people not to worry about this.

[Lapsed Workaholic]

If I recollect correctly from other cases, if an appeal to the upper tribunal is allowed then the benefit and rate of benefit will continue to be as it was before the assessment was actually done, as if it had not taken place.

 

You could check ordinance survey maps and street maps of the area in question on line or at your local library. It should not be too difficult to establish the veracity of the Google figure or find several accurate confirmations of an actual distance.

 

The very first set of descriptors are:

 

1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally, or could reasonably be worn or used.

 

(a) Cannot either:

(i) mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;

or

(ii) repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion. [15 Points]

 

(b) Cannot mount or descend two steps unaided by another person even with the support of a handrail. [9 Points]

 

© Cannot either:

(i) mobilise more than 100 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;

or

(ii) repeatedly mobilise 100 metres within a reasonable timescale because of significant discomfort or exhaustion. [9 Points]

 

(d) Cannot either:

(i) mobilise more than 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;

or

(ii) repeatedly mobilise 200 metres within a reasonable timescale because of significant discomfort or exhaustion. [6 Points]

 

(e) None of the above apply [0 Points]

 

You reckon that you scored 6 points in this group of descriptors. This would point to you being awarded the points under sub-section (d).

 

If your own account were to be fairly considered, especially the evidence given about distance and how it was established, there is no reason to suppose that © or even (a) might not be applicable.

 

No sooner was I beginning to think that we were on the same wavelength than your statements have begun to confuse me again. You say:

 

"At the WCA i scored Nil Pwa 0 for every descriptor As the majority of claimants do"

 

Surely this can't be right. You said yourself that you were awarded 12 points. We have figured out where 6 of those points come from. Where do the other 6 come from?

 

Might help if I knew what you mean by IBS, and what is its relevance here?

[tommy456]

I didn't intend to confuse you,

At the WCA i scored 0 points which resulted in me appealing the ATOS decision (after the MR)

 

The appeal tribunal awarded a total of 12 points 6 for as you pointed out sub section (d) Cannot either:

(i) mobilise more than 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;

or

(ii) repeatedly mobilise 200 metres within a reasonable timescale because of significant discomfort or exhaustion. [6 Points]

 

And the other 6 points for

9. Absence or loss of control leading to extensive evacuation of the bowel and/ or bladder, despite the presence of any aids or adaptations normally used. (sub section b) At risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change in clothing, if not able to reach a toilet quickly. 6 points

 

when subsection a)

At least once a month experiences

 

1. loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder; or
   
2. substantial leakage of the contents of a collecting device sufficient to require the individual to clean themselves and change clothing = 15points
   

should of been applied from what my GP put in his letter and what i told them on the day

[Lapsed Workaholic]

Thanks again for the clarification.

 

Here again you could claim that there has been an error in law. That your GP's written evidence had not been taken into consideration. It might also be argued/shown that if your GP's written evidence had been considered it would have become evident that in an employment situation, increased anxiety, activity and exertions may very well exacerbate this condition to the stage where 9(a) may easily be applicable.

 

Incidentally, Liverbird, the first tribunal having already decided to award points on the first set of descriptors as they did, it would be unlikely that the Upper Tribunal would rule that the first tribunal erred in overturning the findings of the original assessment and reverse that decision on the basis that they did not take account of the full meaning of the descriptor itself. The first tribunal must have explained in the notes of the case the reasons for their decision to award the points.

[tommy456]

Checked a few web sites that provide walking /running mapping/distances and all are giving results under 100mtrs from entrance of station to outside tribunal address, They may use the same source, i'm not finding any OS mapping that allows you to measure distance between two points though

 

I also found some info on appealing to the UT http://www.disabilityrightsuk.org/appealing-upper-tribunal-against-first-tier-tribunal-decision

 

Unless i'm mistaken it would appear that the first tier can correct errors it made if it wishes to , which is all i'm really asking (re distance & and the loss of control once per month)

[Lapsed Workaholic]

Most maps worth their salt give details of the scale used. Google maps on my computer also give a scale in the bottom right corner and it can be zoomed in to show what 100 metres, and even less, looks like.

 

If you can show by quoting/showing examples that the distance the DWP claim to be 200 metres is in fact less than 100 metres then that is all the evidence you require to show beyond reasonable doubt that there was an error in original evidence.

 

The information in the link you provide explains the procedure for appealing much better than I can.

 

The Tribunal Service will give you a detailed explanation of their decision and how they arrived at it upon request. This is called their 'statement of reasons'. You will need to ask for, receive and examine this before you seek leave to appeal the decision of the tribunal. You should also ask for the tribunal's 'record of proceedings' at the same time. All this should inform you as to whether or not you have a reasonable chance of having their conclusions overturned as being based on an error and therefore open to further appeal. It takes about a month from making the request to getting the documents.

 

if you can present your evidence relating to both the descriptors we have recognised along the lines we have discussed it here I believe that you would have a better than average chance of success.

 

Whether the Tribunal Service decide to amend their decision or correct any errors themselves at First Tier or send it on to an Upper Tribunal is their call, either way you will have what you want, a reconsideration and an opportunity to address what you consider to be the errors in the original decision.

[tommy456]

record of proceedings , is that a word for word account of what was said,? Just that when the DR asked me how i got to the tribunal, and how i got from my home to the train station , i explained that i had got a lift to the stn in a friends car,

 

they then asked if i had walked from the stn (which is visible from window) and how many if any times i had to stop from there to the tribunal building, and then he asked me how far is that i said that i didn't know , he then said about 200mtrs or so perhaps ?,

 

So was guessing the distance, and in any case i had stopped twice before i left the stn ,and again whilst i waited for a clear gap in traffic to cross the busy road that the tribunal is located on

I also told the tribunal that sometimes my knee would lock after walking only a few paces other times it maybe longer , it is random,

[estellyn]

It's worth appealing to the upper tribunal. I won a case on a similar matter (involved doctor misunderstanding how a medication was used) and was awarded a new hearing for the client. UT can substitute their decision, though they prefer not to do it unless necessary.

[tommy456]

What will happen in regards to my esa being paid whilst i go through the process involved will it work in the same say as when i requested the decision made in my absence be set aside ? in that once the tribunal service acknowledge that i want to appeal to the UT Esa will be paid until conclusion is reached , or will there be a break in payments ? I assume that it will remain at the pre assessment rate and i still will be required to send in MED 3's

 

I'm very tempted to take this to the UT with a view to getting the correct outcome, if they decided a new hearing would that take into account the points awarded in this decision ? or would it be carried out as if the appeal had not been heard before? (set aside)

 

Reading a similar scenario on another site ,but old info now, would suggest that ESA isn't payable when taking your case to the UT, But i could start a new ESA claim as it's over 6mths since the original wca decision was made, but i could run the two in tandem, ? is this still the case or have things changed ?

 

As i can't survive without being paid ,and i wouldn't be able to claim JSA for long before getting sanctioned , as even getting to and from the JC would be problematic, costs of bus fares ,times and reliability of bus services ,as walking would be too painful , i would end up being late or not able to turn up due to health problems ,let alone search for work (that i wouldn't be able to do)

 

The other question regarding going to the UT following getting the statement of reasons and the other of what happened at the appeal, would i need to engage a solicitor ?

[estellyn]

ESA is not paid waiting for UT decision.

 

Yes you can make a new claim, but do it soon as the 6 month rule ends in a few weeks.

 

You would need an experienced benefit adviser to prepare your UT case.

[tommy456]

were would i find one of those, the CAB or else where ?

[Nystagmite]

If CAB can't help you, they should be able to advise you of people who can. The council should also have a welfare department who can help you too.

[estellyn]

The CAB can either help or refer you to the nearest organisation who can assist. For UT appeals you can still get legal aid assistance for, so cab should be able to tell you who has the contract to provide LA help in benefit work for your area - make sure you either go with cab or the organisation with the LA contract as they have the expertise. A common or garden solicitor won't have the expertise in such a specialist area of law.

[tommy456]

Ok thank's for the info it's much appreciated , Will the DWP send me a ESA1 claim form prior to them informing me that from the date of appeal that i'm not entitled to ESA ,? I'm also due payment this week,

If not is there anywhere apart from online/print or direct from DWP fresh claims call centre i can get a esa 1 claim form from , as local JC's no longer have them iirc

[estellyn]

They won't send you a form automatically - you normally have to claim by phone.