ESA support group appeal - **APPEAL ALLOWED **

[id6052]

I would be grateful for some guidance and advice

 

My father in law has been in receipt of LTIB for decades.

 

Last year when he migrated to ESA, he was put in WRA group contribution based, which will only run for 12 months. He appealed for Support group.

 

He has an appeal tribunal on 10 February, which I will be accompanying him to.

 

Am I right in thinking that any representations do not need to cover limited capability as DWP has already agreed this? And therefore we just need to focus on demonstrating that one of the Support group descriptors apply?

 

Is there a list of the descriptors? How much detail is required to prove one? Would it help to get GP reports?

[honeybee13]

Hello there.

 

I hope we can help you, as you've done for people on this forum on other benefit matters. I'm sure you'll be a great help to your Dad.

 

I'll send a couple of PMs for you. And yes, there are descriptors for the Support Group but I can never remember where. Someone will know.

[estellyn]

Although a few Tribunals will limit their findings to support group only, some will look at the whole award and may give a warning at the beginning that points already awarded for WRAG could be withdrawn. Though I wouldn't make arguments for WRAG on a submission, I would make sure that supportive evidence for the points awarded are included in the evidence you provide. As far as I'm aware (happy to be corrected) there isn't a definitive Upper Tribunal decision regarding the scope of the lower Tribunal in Support Group appeals, only a Upper Tribunal DLA decision which judges are applying to the ESA WRAG/Support group situation.

 

 

Yes, there are descriptors for support group, hopefully Margaret will provide a link as I'm struggling (with brain fog) to find an up to date list.

 

 

As much detail as possible should be given in a written submission, with supportive evidence provided, so yes, a GP report (or other health professional) speaking directly to the LCWRA (support group) descriptors your Dad fulfils.

 

 

Also look at the exceptional circumstances regs which state:

 

 

they have an uncontrolled or uncontrollable illness, or “the claimant suffers from some specific disease or bodily or mental disablement and

 

by reason 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-related activity”.

 

Or in other words, your Dad's health would be at substantial risk if he had to attend work programme appointments/training.

[**Margaret**]

:id6052:

 

'...... in receipt of LTIB for decades. he was put in WRA group contribution based'

 

There's a lot of it about! Jobcentreplus are hoping we'll be so grateful to have 'passed' we won't think to challenge for the support component.

 

You're right in thinking that Jobcentreplus have agreed limited capability for work but, as with disability living, a tribunal panel sometimes look at entitlement to an awarded component. Less often for employment n support, but it happens, so best to make sure you evidence the applicable descriptors of limited capability for work as well. You'll probably find that argument for most of the already awarded descriptors can be subsumed into your evidence for the limited capability for work related activity (support component) descriptor(s) that you believe your Dad in law meets.

 

All the descriptors and exceptional/special circumstances for an award of employment n support are in the booklet at;

 

https://www.gov.uk/government/publications/esa214-a-guide-to-employment-and-support-allowance-the-work-capability-assessment

 

Exceptional circumstances at pages 11 - 12, descriptors for the support component at pages 26 - 28. And yes, your Dad in law only needs to meet one of the descriptors for the support component or fit into the exceptional circumstances.

 

There's no one correct way to prepare written evidence for an employment n support tribunal, but for me the starting point's always the same. Each descriptor I'm arguing for written across the top of a blank sheet of A4/work doc. Then paragraphs to explain why the appellant meets the descriptor, and where Tatos got it wrong. Along the lines, cos of X (spinal problems) can't do Y (walk/wheel 50 metres). Illustrated with how the appellant copes day to day, for example; Cos I can't walk/wheel to the nearest bus stop my son has to leave work early to take me to the doctor in his car. If my son didn't call every lunchtime to make sure I'm showered and dressed I'd stay in bed all day. Or whatever's applicable to the appellant's situation.

 

If you can get it, medical evidence will help and can be referred to in your submission. If your Dad's doctor's less than enthusiastic, subject access for the medical records. Does he have any other medical professional who can be approached for a report about the effects of his disability? Few paragraphs from a carer?

 

Did your Dad in law have to front up to Tatos? If so, :honeybee13:'s template's an excellent format for rebutting an ESA85. If not and you've only got a sparse ESA85A, you may find it easier to start each section with why your Dad meets the descriptor, then deal with Tatos. Should you think there's an argument for exceptional circumstances write it into a completely separate paragraph. Burden of proof for exceptional circumstances, on a balance of probability, is on the appellant and almost always needs documentary evidence.

 

You're a bit tight for time to get a submission which includes medical evidence through the system (Tribunals Service needs it at least ten days in advance) but one can be sent directly to the tribunal venue. And most panels will read evidence submitted on the day, so long as it's not a book.

 

Sincerely, Margaret.

Edited January 14, 2014 by **Margaret**

[honeybee13]

Thank you to estellyn and Margaret for answering the SOS.

 

HB x

[id6052]

thank you for your advice, it is a great help

[honeybee13]

You don't have to stop asking questions yet, if you have others.

 

Please let us know how it goes.

 

HB

[id6052]

What a relief!

 

After none of us having any sleep for last 3 days, we were in and out again in less than 10 minutes.

 

We did not bring father-in-law, as it would have been too much for him to deal with.

 

Judge and Doctor asked handful of questions, then allowed the appeal on Reg 35(2)(b).

 

Decision advises DWP not to review for 2 years, just need to see whether they accept the advice.

[estellyn]

What a relief!

 

After none of us having any sleep for last 3 days, we were in and out again in less than 10 minutes.

 

We did not bring father-in-law, as it would have been too much for him to deal with.

 

Judge and Doctor asked handful of questions, then allowed the appeal on Reg 35(2)(b).

 

Decision advises DWP not to review for 2 years, just need to see whether they accept the advice.

 

 

Great news, good job!

[**Margaret**]

:id6052:

 

Pleased you got what was clearly the right result.

 

These appeals are a recipe for sleep deprivation. Always takes me at least a week to recover from one.

 

Margaret.

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