ESA Appeal Hearing-Advice

[Guest]

My wife is in her second year of claiming ESA. For the first year she was placed in the Support Group. In October last year she had her second medical assessment and, despite the fact that her scores from the medical descriptors have increased and they have agreed that her medical condition is getting worse, they have now moved her to the WRAG.

 

We have appealed this decision and now have a hearing date in April.

 

We have a letter from her consultant outlining her condition and stating that at this time she is not capable of full time employment due to the severe discomfort her condition causes.

 

Also, as her husband I believe I can give evidence at the hearing stating what I have to do for her etc - is this correct?

 

If so, what is the best way to present this evidence and what should I include? Would a written statement be the best way to go?

 

Also, what other evidence should we consider?

 

Many thanks for reading this any help you are to give.

Best wishes

BJ

[Guest]

I am thinking this will be a tribunal hearing?, I would certainly put in writing all that you have to do for her, and what you witness day to day caring for her etc anything that is to do with her problems/issues with everyday tasks and how her condition/illness affects her and her ability to do things. Unless its changed I understand that its the claimant who does the talking by way of answering questions at the tribunal, someone can accompany as moral support, but I may be wrong on that, someone in the know will be along to clarify I am sure. At any rate, all written statements are considered, and sent off to them prior to the hearing. I had a tribunal in 2011, they wanted all evidence and letters etc in by the week before, at least a few days before the hearing. Some tribunals look at all the evidence before the hearing starts, they did this is in my case and I won without even going in, the clerk came out to tell me and I was sent home.

 

Good Luck

[Guest]

Many thanks for your reply Ruby-T.

 

What confuses me with my wife's case is that she has the required points from the descriptors and also, in the report from the ATOS HCP, they agree that my wife's condition is getting worse and also state that return to work for my wife is unlikely in the next two years. Yet they have still moved her from the Support Group to the WRAG?

 

Given the above facts, should the evidence we provide for the tribunal concentrate on proving that my wife should be in the Support Group? If so how do we go about that?

 

Many Thanks

BJ

[reallymadwoman]

To a large extent, the number of points awarded are irrelevant so far as the Support group is concerned. Someone who scores 50 points won't necessarily be put in the support group - they have to also meet one of the support group descriptors, which are in schedule 3 of this document :- http://www.legislation.gov.uk/uksi/2011/228/contents/made

 

There is a 'sticky' in the main benefits forum specifically relating to appeals which has apparently been successful for other members. You probably need to read the support group descriptors carefully, decide which one(s) might apply, and follow the advice in the appeals sticky to tailor your submission.

[Guest]

Well, my wife had her tribunal hearing last week for her appeal to be moved back into the support group. Result appeal refused. Absolutely gutted for my wife. Wondering where the hell this leaves her.

 

Have written off for a "Statement of Reasons" from the Judge but still very confused andfurious about the whole thing.

 

My wife's appeal was based on the fact that, because of her medical conditions, she is in constant pain while mobilising (walking, etc), we even had a consultant's letter to support this. We tried to state that the constant pain she suffers equates to "significant discomfort" while walking, etc. Clearly this didn't work. I have to say, that I got the impression very early on during the hearing that the doctor was against her from the start. Would like to meet that doctor again just to give him a piece of my mind. Angry doesn't come close!

 

So, can anybody tell me what "significant discomfort" actually means in medical terms? It's baffling the hell out of me.

 

Many thanks for any help you are able to give.

 

BJ

[Guest]

In the ESA Support Group Descriptors for mobilising, the phrase "Significant Discomfort" is used. See below:

Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used.

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.

In medical terms, what could be classed as significant discomfort?

 

I appreciate this is a rather broad question, but my wife recently lost her claim to be moved back to the Support Group. She tried to claim that being in constant pain because of her medical conditions while mobilising should be considered as significant discomfort.

 

Anyone have any experience or knowledge of what has been excepted as significant discomfort in any claim, etc they are aware of?

 

Many thanks for any help you are able to give.

 

Regards

BJ

[estellyn]

Unfortunately, mobilising also includes ability to wheel themselves in a wheelchair.

 

 

Significant discomfort is subjective, but the Tribunal judge and doctor will often assess based on what pain medication the person is on.

[Guest]

Many thanks for your reply estellyn.

 

I appreciate Significant Discomfort is subjective but there must be some guidelines surely?

 

In my view, what pain medication a person is on shouldn't come into it, you can numb/kill almost any pain with the right medication.

[estellyn]

Many thanks for your reply estellyn.

 

I appreciate Significant Discomfort is subjective but there must be some guidelines surely?

 

In my view, what pain medication a person is on shouldn't come into it, you can numb/kill almost any pain with the right medication.

 

 

Basically, from my experience, how the doctors on the Tribunal see it, is that the level of pain meds is indicative of the type of pain experienced. So clients I've had who have been on paracetamol and ibuprofen and claimed significant discomfort while walking or wheeling a chair have not been considered to be in sufficient pain to meet the descriptors. they will also look at the things a person does - so was your wife asked questions about shopping, holidays, visiting friends, length of garden etc? And if so what were her responses? Someone in significant pain dramatically reduces their activities because of that pain. I'm not saying this is the right way to judge, just how Tribunals seem to go about it.

 

 

ETA: As a comparison, an example of someone who met the support group descriptor for walking - on high dose opiates, paracetamol, pregablin for pain, only leaves the house for appointments with doctors etc, doesn't go on holiday, has shopping delivered, needs to be wheeled through hospital for hospital appts. It's the picture of the life that the Tribunal feels indicates the significance of the pain.

[honeybee13]

Hello BJ.

 

Ive merged your threads as they're both about the same problem. It's better to stick to one thread per subject. You're in safe hands with estellyn.

 

HB

[Guest]

"how the doctors on the Tribunal see it, is that the level of pain meds is indicative of the type of pain experienced."

The problem I have with this is that different people have different pain thresholds.

 

I'm not certain of the actual name of the medication or the dosage, but my wife is on a controlled morphine based medication for the pain she suffers in her neck, shoulder and lower back. It's a pain in the @rse trying to get this medication, because if the local pharmacy doesn't have it I have to arrange to go to the local hospital to collect it.

My wife suffers from cervical spondylosis, right shoulder and arm problems due to an RTA and a fall, and disc problems in her lower back. Head/neck movement is pretty limited, she has difficulty moving her head up and down. Because of the accidents, she cannot raise her right arm above shoulder height and can hardly weight bear with her right hand/arm. She is right handed. She needs help with some personal care. I do the vast majority of the housework, cooking, ironing etc.

 

At the tribunal, the doctor asked my wife about her typical day. She stated that on a good day she can go shopping but never goes alone because if someone nudges her right-side she gets shooting pains throught her shoulder/arm. Again, on a good day she is able to visit our daughter who lives on the same estate, but most importantly, she is able to rest there for an hour or so before returning. On bad days she doesn't leave the house and does very little. They didn't ask about holidays.

 

I got the impression that the doctor didn't believe what I do around the house. Would certainly like to meet that man again! I hope he suffers the worst pain imaginable in his life.

 

Regards

BJ

[estellyn]

Your wife can request a supersession if her condition has worsened since the WCA - this will trigger a reassessment, with another opportunity to try for support group.

 

 

While waiting on a supersession, request a statement of reasons and transcript of proceedings from the Tribunal Service. This can then be looked over to see if there are any errors of law.

 

 

Do you think that you provided enough information saying that your wife cannot walk or wheel herself more than 50 metres on most days? Did you provide medical evidence to support this?

 

 

What was the reaction of the Tribunal members to the info that your wife can go shopping or visit daughter on a good day? Some will take the opinion that if a person can walk around a supermarket on a good day then they would be able to walk more than 50 metres on an average day. Disability doesn't always work like this, but doesn't stop some people thinking it does.

[Guest]

Hi estellyn,

 

Firstly, the appeal was to be placed back into the Support Group, she was moved into the WRAG after her last assessment in Oct 13. Currently, my wife still gets ESA and will do up until Oct 14, then her claim will be moved from Contribution based to Income based and the ESA will stop (because of my income). My wife can walk but, on really bad days, she suffers a lot of pain in her neck, shoulder and lower back, so avoids going anywhere. On good days she still gets pain but not as bad.

My wife had a letter of support from the consultant she sees to manage her pain, which stated that she suffers significant discomfort (through pain) even on short distance of less than 50 metres. The letter also stated that my wife needed to mobilise to help her condition but that she was finding in difficult to do so due to pain levels.

 

The tribunal asked how many good and bad days she had per week answers was 2-3 of each. thet talked about walking around the supermarket, and we stated that when she does go she goes with our son, and rests frequently. I tried to quickly add that she last went about two months ago and that I having been doing the supermarket shopping most of the time. I was told I would have my chance to speak later!!

 

We will ask for a statement of reasons and a transcript, but I need to calm down first before writing. Still bloody furious.

 

Many thanks

BJ

[estellyn]

Be aware BJ, that there is only a very, very small chance of finding an error of law in order to challenge the Tribunal decision to an upper tribunal.

 

 

The best chance is the supersession due to worsening condition and be very specific on the ESA50 about capabilities, and maybe attach a written typical day or typical week to emphasise the issues.

[Guest]

Thanks estellyn. Yes I am aware there is very little chance of finding an error. To be honest, we have more or less given up on challenging the tribunal decision, but by god I'm going to make them work for their pound of flesh.

 

Can anyone tell me what will happen come October when my wife's ESA will stop? Can she choose to continue being assessed for ESA even if she doesn't get anything? Will she then continue to have annual assessments?

 

BJ

[estellyn]

Thanks estellyn. Yes I am aware there is very little chance of finding an error. To be honest, we have more or less given up on challenging the tribunal decision, but by god I'm going to make them work for their pound of flesh.

 

Can anyone tell me what will happen come October when my wife's ESA will stop? Can she choose to continue being assessed for ESA even if she doesn't get anything? Will she then continue to have annual assessments?

 

BJ

 

 

Do you and your wife have other income coming in or savings?

[Guest]

I have income from work and a pension. My wife doesn't work so has no income. We have joint savings.

 

I know that because of my income and our savings, my wife will get nothing from Income-based ESA. That bit of legislation in this country really p***** me off. I'm not majing the claim, my wife is. She has paid full NI contributions all her working life and now will get nothing.

It's a similar argument to when my daughter went to university and applied for a student loan - they took into account my income to decide on the level of loan my daughter could get. I didn't want the loan, my daughter did.

 

Sorry, rant over. Many thanks for your help.

[estellyn]

Yes the 365 day limit is awful, I agree. Your wife will be able to carry on getting NI conts paid, and remember, on reassessment, if she gets put back into the support group, cont based ESA would resume as it would still be based on the same contribution years. Whereas if she broke the claim and then reapplied at a later date, she may not qualify for cont based if put back in the support group as different contribution years would be used to assess whether she qualifies.