ESA - Lost Tribunal - Upper Tribunal Awarded...UT Postponed!!!!

[Guest Miss Anxious]

I just answered on his thread, so hopefully he will see wht I've written. Not a lot, but a start...please add to what I've explained as I've probably forgotten something!

 

Miss a.

[Max1968]

Just an update in my situation. Saw the Doctor again regarding my condition and he has signed me off again for another two months. He said to me after discussing my upcoming Health Assessment in a weeks time that if found fit for work my future health could be put at further risk. Nice words from a qualified guy knowing what he is talking about but after reading about people in far worse situations I think that the new sick note will be a waste of time anyway.

 

 

I have even looked into any job possibilities I could do if I am found fit for work by the flawed process and my GP admits that I wouldn't even get past the application stage let alone interview stage basically agreeing that I am currently unemployable. He is also aware about the previous company Atos who made bonuses for every person that they got back into work. He thought it was disgusting.

 

 

I am finding it really hard considering I haven't even had the Assessment yet. The stress is really bad and it shouldn't be like that.

 

 

If I am found fit to work by the lot at Maximus would this also affect my current discount in Council Tax Benefit as well?

[ripples]

No two assessments are the same and yes you do hear a lot of horror stories but there are success stories as well. I wouldn't worry about the prespect of being found fit until it happens as the stress will tire you. In the scenario that you have been found fit they will invite you to apply for JSA and your housing benefit/ council tax relief will continue but you would have to check with the council if they want you to re apply for a benefit or not. Also whilst being on JSA you can go forward with a mandatory reconsideration and appeal.

[tommy456]

Well as experiences of Maximus will vary just as peoples health conditions do , My personal experience is they are no different than ATOS and i didn't for one minute think that they would be , it also would come as no great surprise to learn that some of the former Staff employed by ATOS are now doing the same thing for Maximus , Sometimes it's best for some to expect the worst case scenario 0 points scored that way you avoid the same level of disappointment

 

The thought of claiming JSA whilst you await the MR decision can be quite daunting ,i'm currently in that cycle now myself, but if you know the rules surrounding stuff like UJ and what they can or can't mandate you do do , it can become more bearable

[Max1968]

Well I had the Assessment today. An awful end to an awful week. Had a lovely nights stay in hospital last night thanks to my usual normalish blood pressure and high normal heart rate went through the roof. As a Type 2 diabetic I keep an eye on them but this week they have kept creeping up until two readings of 160/103 HR and 166/104 HR 128 sent me to the emergency room. Several readings, an ECG and Full Bloods later it started to fall a bit although the pulse is still elevated today although I doubt coming up to 36 hours with no shut eye whatsoever even with a sleep tab helps!! Fortunately it seemed ECG and bloods were ok. The Dr thought it might have been brought on by a new Vertigo medication started at the end of last week although she thinks it's more to do with severe anxiety, so another condition to add to my bow!!

 

 

Mind you I was quite happy for the BP to stay elevated at the Assessment because he covered every single one of my conditions past and present and when he saw I was edging 165/105 he looked disappointed that I wasn't full of bull****!! I must say you can see the deceit early on as they try to catch you out with every opportunity. From telling everyone that the rooms are second floor but in the case of a fire can we all use the stairs? I said yes but probably slowly!! Wonder what would have happened if I had said no?! Then they lead you to the room. I tried to allow him to lead but they cheekily throw doors open for you so you have no option but to catch it on they way back. I wasn't brave enough to let it hit me in the nose! He then got me to sign a disclaimer with regard to the interview being recorded (which I requested). Interesting how you sign and then he informs you that you mustn't ever let the tape go public. I mean if it is all above board and no underhand business takes place why would they say that?!

 

 

He continued with all my various conditions and banged on about my IBS (bladder and bowel) which I have had for years but are fairly controlled these days. He seemed obsessed about whether I ever soiled myself or peed myself, which I thankfully haven't, but I cannot believe that I was disappointed that I hadn't because I could see a very big "yep he is fine to work on that one" as he tapped away on his keyboard. Making a sandwich seems to show you can look after yourself and oh god I have stairs at home, what a disaster for me! "What do you do each day?" he asked and once I had told him that it depended whether I had managed to sleep or not. Admitting that I make a cup of coffee with a kettle looked like my first mistake and then when he pushed on what I do all day my reply that I looked at the internet to try and find cures and hope for my conditions seemed to give him that twinkle that I can read and use a computer. Great skills for being forced back into work! I did admit I job search to see if that there is anything that I could do but offered him to advise if he thought I would actually get past the Application stage. That was the quietest he was all afternoon!

 

 

Then it came to the physicals, although he wouldn't allow me to do one or two things. Don't know what but jumping though a hoop or making a bungee jump I suspect! It was at that point that god lent me a hand by giving me a vertigo attack. Sadly only when I was sitting there rather than climbing up onto the couch, but an attack all the same. Unfortunately for the viewer unless I fall off a cliff it isn't particularly exciting. I mean it all spins for me but all it does for the spectator is see me close my eyes and groan like some sort of dodgy medium calling the spirits! Sympathy? You are having a laugh, my proud moment was the one moment that he interestingly didn't tap away on his keyboard about. Of course we can't report that said client had an attack of the condition that is stopping him from working can we!! After I had settled he clicked his fingers, made me turn my hands over without him touching them (learnt that one from Delboy I think!), told me to follow his fingers with my eyes that nearly sent me into another spin. Then he asked me to stop him pushing my arms down and various other things before trying to make my reflexes work. Left knee let me down and did jump whereas the right knee played it cool and didn't move an inch! Pity he didn't ask if I could punch him as hard as I could, I am still debating as to whether that would have made nil points worth it!!

 

 

So there you have it. Three weeks wait and if I haven't heard I have to chase them?! If they forget why is it down to us to hunt them down?! We shall see but I must confess that I left there thinking that dear old Superman star Christopher Reeve god rest his soul would have struggled to have convinced the DWP !!!

[tommy456]

Yes, your experience sounds very familiar on several points, very annoying when trying sometimes when listening to your audio cd recording and the noise from the cheap tacky keyboard or the force used to type their input into LIMA software which is used to create these reports to a DWP non medically trained decision maker, who in turn will give a score of 0 where ever possible, that is sadly what dodgy Dave and cronies wanted

 

Just quite how the WCA can be a real test of someone's fitness/capability to work is beyond believe

[Max1968]

It was certainly an eye opener to me although I have listened to the CD back tonight and I was reasonably pleased with how it came out bar as you say the ridiculous tapping on his keyboard. I actually asked him what my BP and heart rate were because he wasn't actually going to say, he just pointed at the numbers which meant if I hadn't said anything it wouldn't have been on tape. Even then the first number on my BP hasn't come out on the recording. Almost like it's been doctored out but of course it hasn't.

 

What is incredible is little things like when he is questioning me about my Diabetes he kept asking about my Blood glucose levels of which I told him my HbA1c levels. He wanted to know my glucose levels which I could tell him but they don't really apply anymore as the HbA1c is used these days. He didn't seem to know what it was which is rather strange knowledge from a health professional? The exercise's were absolutely pathetic to be honest. Unless you have a severe physical limiting disability pretty much everyone could do it and that therefore is the problem, if you can lift your legs half an inch, clap your hands and find your way to the Assessment they will probably deem you fit for work.

 

I am wondering , does anyone know of anybody who has been forced back to work then suffered a fall or complications from returning to work hen attempted to sue the DWP for their part in forcing an unfit person back into work?

[tommy456]

I can't say that i have heard of anyone suing them , but if they have it has been kept quiet , I remember many years ago having a commuted fracture to my wrist being off work as a result and claiming sickness benefit as it used to be called back then, they eventually sent me to their doctor ( they used to wear white coats back then) they found be fit for work although i still didn't have full movement and was still having physiotherapy for it, after a short time around 2mths i think i ended up in A&E again with a dislocated knee, which was manipulated back into place by paramedics after an x ray it was found that i also had a fractured patella , so had a fibreglass cast and given crutches, and back on the sick again , when t to another medical, and was found unfit for work, i thought back then one of the reasons where that if they had found me fit for work, and i had an accident at work, as a result they could be sued, so they were being cautious , But when it was strong enough again i returned to work ( self employed back then)

[TW25]

Not quite the same but being made to job search on a computer aint doing my long term health any good. Suffering from RSI that seems to be getting worse and the job centre not offering any help i think is disgusting. A few jobs ive not applied for as just doing the application will hurt to much. Much easier say Reed etc just click click done. I will be asking for more help at my next jobcentre appointment. If nothing is done ill try a fit to work note from the doc stating more about the condition + going higher up.

My advice is if your deemed fit and failed with the appeals process take someone for suppport when you sign your claiment form and only sign when happy with it to the letter. GL

[tommy456]

Well my claimant commitment lists next to nothing no uj,ect, but it didn't stop them mandating me to create a UJ account, It seems UJ is used as a tool by them to create more hoops for someone to jump through

Even when they know it's all a big waste of your time searching for employment whilst you are waiting for a MR which seem to take ages as they don't work in the DWP's favour

[Max1968]

Well I received a phone call today a week and a half after my health assessment basically saying that before any decision mak8ing is made someone at the DWP will call me on Monday for a chat about my claim.

 

 

Anyone experienced one of these calls before and can advise what it is about, what I should know, say?

[tommy456]

Although i ran them yes i have had a call like that, they basically firstly told me that i had not scored any points at the WCA & went over things with me,asking how the conditions effected me , and resulted in being awarded iirc 6 or 9 points , which was the incorrect amount if they had accepted what i told them , I think it's where they need better clarity on something

[Max1968]

Well had the phone call this morning and got a grand total of nil points. Vertigo, Chronic Insomnia, Partial Deafness, Irritable Bowel Syndrome, Irritable Bladder Syndrome, Type 2 Diabetes, Arthritic Hips and a vertigo attack and blood pressure of 160/100 at the Health Assessment and I get zero points!!! She asked me if my conditions had changed of which I replied my Insomnia is worse than ever, she asked "are you going back to your GP" to which I said "yes in June", which is the earliest appointment and I booked that two weeks ago!! No questions on how things affected me, just a blank call saying I didn't qualify. I asked her that if forced back into work and it had an impact on mine or someone else's health if I were to have a vertigo attack or was so exhausted due to lack of sleep then who would be liable and she just said "ask the Job Centre". Then she had the cheek to say how lovely it was speaking to me and "have a lovely day!", yeah right!! Not surprised they don't ask you to stay on the phone to complete a "How did we do today Survey!!"

 

 

Was then put through to Job Seekers Allowance where I had to ring back because I couldn't understand the advisor. I was then told I have an appointment at the Job Centre on Wednesday and have to sign a declaration saying I am actively looking for work, even though I am deemed NOT fit for work!! It could be problematic getting Job Seekers because when made redundant a member of my family lent me some money to help with living costs and they classed it as income even though it was a loan so I didn't qualify for Job Seekers. The situation is the same today so once again I guess that will be classed as income. I mean who can live on £70 a week!!?!

 

 

I assume I will now receive the report through the post with the decision attached along with details of how to do this Mandatory Reconsideration thing?

[reallymadwoman]

You have to request the ESA assessment report separately, but don't wait for it to arrive, get your mandatory reconsideration in now.

 

Go through each descriptor where you feel you should have scored points and explain why. Be prepared for there to be no change, but you can then appeal and go back on to assessment rate ESA instead of JSA.

 

Try to take someone with you as a witness for your appointment on Wednesday. Make it clear that you're awaiting Mandatory Reconsideration and will appeal if necessary as you're in no state to work and your GP has advised that trying to do so would make you worse. I beleive JCP staff are usually pretty accommodating for people in your situation, but if you're asked to sign something which you think will be impossible for you to do, make a fuss.

[Max1968]

The woman said both the letter and her report would be sent to me so have I missed something? Also how would I claim Mandatory Reconsideration before the letter arrives?

 

Also had to call the Council re Council Tax Benefit because my circumstances have changed and she said she would suspend my claim or something so I don't have to make another claim and just to let them know when (or if) I qualify for Jobseekers.

 

The problem is I can't really see where I would gain points because the points system only covers a handful of illnesses and disabilities. I can't see anywhere how exhaustion/lack of sleep or dizzy spells qualify. It's designed to be impossible to pass and the fact that thousands of people far worse off than me have failed it as well.

 

What I find fascinating is how you can be found fit for work if you are unemployable!!

[honeybee13]

That's the system unfortunately, Max. The important thing when you take the report on you apart is to find all the errors and contradictions.

 

You also need to spell out how your symptoms make it impossible for you to work.

 

Have you read the forum stikky on appeals?

 

HB

[Max1968]

I haven't read the sticky as yet but will.

 

Called the CAB and they were very helpful and "not at all surprised". Also awaiting a call from the Practice Manager at my GP Surgery to see if a GP can forward a letter to me as some extra medical evidence.

 

Rang back the DWP and finally got through to just confirm both a letter and medical report would be sent via post. Been discussing options with my dear old mother as well as this sort of thing doesn't just affect the person who is unwell and she even suggested that I move back home and rent my house out. A 48 year old man moving back in with his mother all because the pesky government that I unfortunately voted for doesn't support it's citizens when needed most.

 

Without trying to sound disrespectful I and countless others would be better off having got off a boat at Dover or hiding in the back of a lorry!!! Well those buggers ain't getting my vote next time around!!!

Edited May 17, 2016 by honeybee13
Paras.

[Chester6]

Media would have you believe the refugees would have it easier whilst the reality is totally different

You should know how it works to be rejected as they'll iinsfobe there's a job for you like button pushing plus you voted for the Tories and karma gotten you back

[Max1968]

Chester yep you are probably right!!

 

 

Well I got the written decision and report today. Anyone know why these reports consistently repeat themselves?! It seemed fixated that once in a blue moon I hoover my carpet, look at my mobile phone, use the internet, brush my teeth or visit a café for something to eat and use these examples as a "typical day",. I only wish I could visit a nice café for something to eat every day!! Why are things that you can do "sparingly" and "rarely" be considered as a typical day?!

 

 

For some reason I could apparently stand in the same place for over an hour even though they never asked and I would question whether anyone bar the Queens guards could stand on the spot for an hour without moving but I can lift an empty cardboard box so that's fine I am for for work!!!

 

 

I was also somewhat angered by the fact that despite being partially deaf the fact that I heard my name being called contributed to getting nil points. They don't tale into account that I sat there looking down the corridor and at every person who walked down it to make sure I didn't miss my name being called.

 

 

I was also spitting blood that because I sat in a chair this produced a "positive balance test" so totally overruling a private consultation that took two hours of various specialist vestibular tests that determined that my horizontal balance mechanism does not currently exist!! They had already accepted that my balance was unsteady in another part of the form so how can an untrained imbecile decide that sitting unaided on a chair overrules the views of a specialist consultant?!?!?!?!?!?

 

 

I find it staggering that things that you say that you can do on occasion seem to slot themselves into the report as a "typical day". Plus I find it interesting that the decision maker does not sign the report of make any suggestion of his/her name. Maybe that stops them from getting any personal flak.

 

 

Also went to the Job Centre to obviously now apply for Jobseekers. The woman there was ok to be fair but seemed totally oblivious to the fact that upon applying for jobs an application form asks you to list any medical conditions. Of course in many of our cases that will show that your are unemployable and at the very least would not help you succeed in beating other applicants to the job. Plus a GP sick certificate that deems you unfit for work but of course all that is overshadowed by a decision from some totally unqualified person sitting behind a desk!

 

 

I have got an appointment with the CAB on Monday where someone will go through my report and help me to write a letter back re the Mandatory Reconsideration. Should I phone the DWP to let them know this is what I will be doing or will the letter next week suffice?

 

 

Thanks again.

[antone]

I'm sure you voted for the Tories in good faith, but as you'll know the impression that they and their media accomplices give of benefit claimants is far from accurate. It's worth considering that the same thing may be true for immigrants and refugees.

 

Anyhow, I'm sorry to hear about your experience with the ESA WCA, but sadly what you describe is fairly typical. Still, plenty of these obviously terrible decisions do get overturned on MR or (more likely) appeal, so not all hope is lost. I wouldn't bother to call the DWP to inform them that you'll be requesting an MR. What I would do is send it by post ASAP and then perhaps call them in a week or so to make sure that it has been received. Once you have the decision from the MR (and assuming it is adverse) you can submit an appeal to the Tribunal and request that your ESA be reinstated pending the result of your appeal. This should at least save you a little bit of hassle with the Jobcentre.

[honeybee13]

Hello there.

 

So what you need to do now is go through the report in every detail and note all the inconsistencies. Then probably at tribunal stage, you demonstrate how the report is at odds with your actual life.

 

HB

[Max1968]

Thanks for the advice. I must say it's a badly written report. Bad use of English and grammar and extremely repetitive, mentioning a "typical day" several times when it isn't a typical day at all.

 

What I have pointed out so far, the below are my opinion of what has been written, scored : Hopefully the CAB may be able to advise me on how to use my comments in a letter.

 

 

***A vertigo attack can arguably be considered a fit and is as debilitating as one. I have several attacks per month.

 

*** The mental faculty of being aware of danger is diminished whilst being exhausted and having a vertigo attack.

 

***Would being UNABLE to attend work or being UNABLE to perform a job to the required standard due to fatigue and dizziness be “acceptable behaviour at work?”

 

***“He sat during the assessment which revealed positive balance test”

. Is this comment serious?! Sitting down on a chair produces a positive balance test?!?!? My diagnosis with regard to vertigo and balance was made from a series of private vestibular tests by Dr **********************. He is an “expert” in the field. These tests took two hours to perform and the results showed “Definite reduced function of the inner ear on the left side, principally affecting the lateral semi-circular canal. Therefore lateral movement of the head can cause symptoms.” In a nutshell my horizontal balance is severely compromised. Those tests are proof of my balance disorder NOT sitting in a chair for an hour!! I am extremely offended by this suggestion.

 

*** This is NOT a typical day. . I perform those tasks if well enough on a particular day. There is no guarantee that I can perform those tasks reliably, repeatedly and safely. I also have absolutely no recollection of taking out my mobile phone and using it at the assessment as suggested in the report and I was not wearing a pullover as also suggested so this has been fabricated in the report.

 

*** If the Healthcare Professional did not assess my neck out of fear of causing a vertigo attack then why have I been passed fit for work? If something as simple as examining my neck deemed a risk then surely more exaggerated activity is also a risk? In fact the report fails to actually mention that I actually suffered a vertigo attack at the assessment.

 

*** There is a massive difference between “hearing a loud voice at three metres” in a quiet room with two people in that room than hearing people in other social situations. Also it is an assumption to suggest that I lip read. I do not know if I do myself. It has been suggested that I may but if you asked me to consciously do it I couldn’t. My hearing difficulties have been diagnosed by qualified audiologists for over 40 years. I very much doubt a one hour assessment with a Healthcare Professional is a qualified audiologist.

 

*** “The evidence suggests that he doesn’t seem to have significant limitations in communicating”. Once again this is based on a suspected unqualified audiologist making an assumption in a quiet room with only two people. A hearing aid is not a magical cure. It can help but in many situations it just succeeds in making every sound louder as well as speech. You cannot judge my difficulty in communicating by a one hours assessment in a quiet room with only two people engaging in conversation.

What the report fails to mention is that I requested that the Healthcare Professional repeat himself several times during the assessment.

 

*** Once more this is NOT a typical day. . I perform those tasks if well enough on a particular day. There is no guarantee that I can perform those tasks reliably, repeatedly and safely.

 

***Again I state that the risk of harm to myself or others due to the effects of fatigue/exhaustion and/or vertigo is dependent on whether I can perform tasks reliably, repeatedly and safely. I currently am in no physical condition to guarantee that I am and I very much doubt a one hour assessment can guarantee that either.

Example – If I were forced back into work and at work fell down a flight of stairs due to a vertigo attack or the effects of fatigue due to insomnia and collided with another person on those stairs casing injury to myself and the other person who would legally be liable for that accident considering the very real risk of such an event occurring?

 

*** The Health Assessment was an hour long with on the whole fairly simple tasks. The assessment criteria is totally different than living day to day with constant balance issues, vertigo attacks and extreme fatigue and exhaustion caused by not having a natural nights sleep in over 7 months. Sleeping medication also has side effects of day after fatigue so I am constantly tired and fatigued.

 

The only way that I can exist is to hope that I get a couple of hours of un refreshing sleep. Lack of sleep affects many areas of health including motivation, mood, alertness, mental wellbeing and other physical disorders such as elevated blood pressure and heart rate and has currently increased my diabetes levels. I have already spent a night in A and E due to blood pressure and heart rate and what your report does not mention is an extremely high blood pressure reading I had taken at the assessment.

 

Being forced back into the work place would mean in my current situation that I would get even less sleep than I presently do thus raising significantly the possibility of further damage to my health and mental state.

 

The “clinical findings” of the report on the basis of a one hour assessment contradict the “clinical findings” of my GP and various consultants and experts in the field of vertigo and insomnia.

 

Yes there are tasks that I do at home when I can and when I feel capable but I live alone, I do not have a choice.

 

 

____________________________________________________________________________________________________________________________________________

 

 

So there you go. Basically I have bullet pointed certain comments on the report and answered those comments so to speak. Wondered what you may think about my replies? Too aggressive ? Anything you wouldn't mention?

 

Appreciate the help again.

 

 

 

 

 

 

 

 

 

 

 

 

[reallymadwoman]

No matter how true or how satisfying, you must try to avoid any suggestion that the HCP is lying - an accidental error is fine, suggesting it's deliberate will just annoy whoever is reading your letter. In fact, try to avoid any outright suggestion that the HCP is incompetent in any way, merely that on this occasion they have omitted/failed to note/misunderstood etc. You must also make your comments fit the criteria to make it easy for the new decision maker/tribunal to allocate points and/or make it fit their definition of 'at serious risk' - in particular for the latter that doesn't mean there should be no risk, but that there should be a 'substantial' risk.

 

Just a thought as I know next to nothing about your conditions, but perhaps you could also describe what happens when you have an attack, e.g. if you get no warning, what would happen if you had an attack whilst standing? If the HCP's version of your typical day is so wrong, give an outline of what you actually do including how many times per week/month you would do the things they suggest you do everyday.

 

Without checking back through the thread, I think your assessment was recorded? If so, find the bits where the HCP has misquoted/misunderstood/elaborated with no evidence and quote what was actually said, e.g.

 

"The HCP says I go to a cafe in a typical day. What I actually said about going to a cafe was ....'

[Nystagmite]

It may help you to keep a diary, which would explain what a typical day is.

[honeybee13]

Good suggestions from other CAGgers. I think you're on the right track with the comments.

 

Either you or the CAB will need to link up the answers with the relevant questions/comments in the report. You also need to show which descriptors you fit and how many points you think you should score for them.

 

HB