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

[Max1968]

Thanks for the suggestions they are very helpful. Yes I have basically highlighted and numbered certain paragraphs on the report and linked those numbers to my comments so it actually makes more sense with their report and my comments side by side. Good shout on suggesting that they were lying, it just annoys me when I read that when it came through.

 

 

Interesting chat with a friend today who is a lawyer and he made a very good point about the fact I now have to show I am actively looking for work to get Jobseekers. He basically pointed out that application forms have medical history sections on them which I have pointed out before. He said that in the unlikely event that I would get an interview they would ask what I have been doing for the last 7 months or so. The answer would of course be "unfit for work". They would the reply "are your issues resolved" and the honest answer to that is "actually no, I am still unfit for work". Basically he said that there is no way you can actually get a job without lying.

 

 

He also said that the best way for the Government to save money would be to get these decisions right in the first place thus saving shelling out for all these tribunals which I thought was quite a quote from a lawyer!

[Nystagmite]

Have you gone through the ESA descriptors to see which ones you meet? That's all they care about.

[Max1968]

Have you gone through the ESA descriptors to see which ones you meet? That's all they care about.

 

 

 

 

 

This is the difficulty. It's quite clear looking at the descriptors that many conditions don't meet them. For instance with my vertigo, yes I can walk 200 metres but not necessarily in a straight line. In the event of an attack I cannot walk at all. But attacks don't happen 24 hours a day. It might be a couple of weeks then one will happen and I'll be extremely wobbly for a few days, slowly recover then have another one and the process is repeated. With the insomnia I just don't sleep without medication but I can't have medication every night and the side effects of the medication is fatigue so even with medication you don't get any refreshing sleep.

 

 

The problem is the descriptors do not cover fatigue, exhaustion, or sporadic episodes of dizziness.

[antone]

There is the possibility of attempting to invoke Regulation 29 or Regulation 35 in addition to or in lieu of the ESA descriptors. Reg 29 states:

 

Exceptional circumstances

 

29.—(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

 

(2) This paragraph applies if—

 

(a)the claimant is suffering from a life threatening disease in relation to which—

 

(i)there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and

 

(ii)in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or

 

(b)the claimant suffers from some specific disease or bodily or mental disablement and, by reasons 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.

 

Regulation 35 is worded similarly, and applies to Limited Capability for Work Related Activity (LCWRA) - a person who is deemed to have LCWRA will be placed in the ESA Support Group. The basic idea is that there will be cases where a person doesn't meet the descriptors but nonetheless could not work because their doing so would be a danger to themselves or their potential colleagues.

 

It's not easy to get a Reg 29/35 claim accepted, and if you were to try that route I'd strongly recommend talking to an experienced benefits adviser. I'm just letting you know that it's there.

[Max1968]

Do appreciate it thank you.

 

 

Could someone confirm that the original capability points criteria is divided into two sections, physical capability and mental, cognitive and intellectual capability with 10 sections under physical and 7 under mental, cognitive and intellectual. Under each "task" is there a minimum/maximum of one point leading to a potential maximum of 17 points?

 

 

I stupidly didn't make a copy of my original form so only have the capability to work tables on the report that they sent.

[reallymadwoman]

This link http://www.legislation.gov.uk/ukdsi/2013/9780111531877/schedule/2 gives the full list of descriptors and points. For most activities you can score up to 15 points.

 

This is a link to the WCA Handbook which gives a lot of information on how people should be assessed, which you should also find very useful https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/408884/WCA_Handbook_Version_7_-_030315.pdf

[Max1968]

Rang my GP Surgery Manager earlier to see if I can get a letter from my GP as support for the Mandatory Consideration Appeal and it's going to cost £30. Incredibly she informed me that the DWP have written to my GP this week stating that I have failed the Health Assessment test and have been found fit for work and that my GP no longer needs to give me any sick/fit notes. I find this incredible. I wouldn't have known that they had contacted my GP unless I had called. Not quite sure who they are calling a liar, me, my GP or both!!! Disgraceful behaviour on their part. The very least they could do is inform you in their letter that this is what they were doing.

 

 

I will call my Consultant's secretary next week and ask if I can have copies of the results of my Vestibular tests because obviously the consultant's letter to me confirming diagnosis was not enough.

[Nystagmite]

But what would the tests prove, in regards to the ESA descriptors?

[Max1968]

But what would the tests prove, in regards to the ESA descriptors?

 

 

Well in the DWP report it says He sat during the assessment which revealed positive balance test,

 

They have obviously ignored the letter from my consultant confirming the diagnosis of vestibular malfunction so I thought maybe sending the full breakdown of tests may help my cause. Surely they can't overrule 2 hours of specialist vestibular tests and declare me having a "positive balance test" because I sat on a chair for an hour?!

 

 

I guess this is the quandary. Certain conditions are not covered in the ESA descriptors. You have to be practically paralysed from the neck down to gain enough points.

 

 

I'm beginning to think that any appeal will be fruitless anyway.

[Bazooka Boo]

Their reports are deliberately false, skewed, untrue, and shouldn't be relied upon in any court, hence why you should appeal, and state that the report is false, the only truth in it is your name, everything else is a figment of the HCP's imagination.

 

You MUST appeal this, AND complain to your local MP, have them account for the actions of their department.

[tommy456]

Thanks for the suggestions they are very helpful. Yes I have basically highlighted and numbered certain paragraphs on the report and linked those numbers to my comments so it actually makes more sense with their report and my comments side by side. Good shout on suggesting that they were lying, it just annoys me when I read that when it came through.

 

 

Interesting chat with a friend today who is a lawyer and he made a very good point about the fact I now have to show I am actively looking for work to get Jobseekers. He basically pointed out that application forms have medical history sections on them which I have pointed out before. He said that in the unlikely event that I would get an interview they would ask what I have been doing for the last 7 months or so. The answer would of course be "unfit for work". They would the reply "are your issues resolved" and the honest answer to that is "actually no, I am still unfit for work". Basically he said that there is no way you can actually get a job without lying.

 

 

He also said that the best way for the Government to save money would be to get these decisions right in the first place thus saving shelling out for all these tribunals which I thought was quite a quote from a lawyer!

 

That is plain common sense ,sadly for us the government aren't big fans of common sense and logical solutions, they love wasting the tax payers money on bureaucratic nonsense the WCA and associated descriptors should be scrapped

[Max1968]

Agreed. The whole problem here is that things are far too black and white. My conditions have improved a tad in the last few weeks. My vertigo is better than it was although I still have attacks and am not 100% with my wobbly vision. The insomnia is still an issue though. I can sleep with the sleeping tablets but am fatigued due to the side effects of those tablets. However the nights I don't have a tablet the electric zap in my head continues and I rarely sleep unless I am lucky and drop off at 4 or 5 in the morning. Sometimes I manage to sleep till 9 or 10 so I can exist the next day if that is the case otherwise I feel like I have constant jet lag.

 

 

So compared to many claimants I am probably in some respects fit for work. But that's on the good days, the days when I don't have any vertigo attacks and the day after I have managed to get some sort of sleep. The problem is I have no idea when those good days will be. There is no crystal ball, no predictor on what sort of day and night I will have so am I fit to do a job to the level expected? Am I going to have a good level of attendance? Am I going to be able to do the job with guaranteed safety to myself and others? On good days possibly, on bad days unlikely. Hence why I say who on earth is going to employ me on that basis? No employer is going to say "Ok Max, if you have a bad nights sleep don't worry about coming in" or "ok you have had a vertigo attack, just go home". They are not going to be employing that type of person. That is the quandary.

[tommy456]

Recently i have had a taste of what your are enduring each day, i had Labyrinthitis diagnosed some months ago , the symptoms appear to of gone for now , but i cannot say they have definitely gone forever, But yes sudden attacks of it , without any warning , i would attempt to get out of bed only to loose all balance and luckily for fall back on to my bed would take several attempts to remain standing and be able to go about having a wash, getting dressed ect the things we take for granted , then there is the impact on other senses

[Max1968]

You have my sympathies. Mine they reckon is migraine assisted vertigo or Meniere's disease. They don't know for sure. The only way they can diagnose it is an invasive procedure in the inner ear which has a risk of causing deafness which considering I have a severe hearing loss anyway I decided and was advise not to have the procedure. They are benign conditions anyway, what's in a name and neither really respond to treatment, only time.

 

 

In my case I have had it twice before. Once in my 20's and once around 6/7 years ago. First time it happened it caused me to have to give up playing tennis. Even when 100% I still can't play because I can't focus when throwing the ball in the air for a serve. I had to battle back to play football and had to "learn" how to do other things again. Second time around it along with my arthritic hips made me have to finish playing football as I couldn't no longer run in a straight line. Each time it happens my recovery is slower and permanent damage is left as a scar. When I walk now it's like having a handheld camera in front of me which records each movement. I can feel going up and down when I walk. Normal equilibrium means you don't feel that.

 

 

In an attack I rarely get any warning. Everything just spins, the room goes around like the end of the big wheel for example the top of the wardrobe will spin to the bottom then come out at the top again. It's a bit like when we were kids someone would put you on a small roundabout, spin it and you would get off suddenly. The difference is the spinning lasts minutes and the after effects last days.

 

 

I had an attack at the WCA and the bloke just carried on typing and yet no mention of this attack was mentioned in the report. Mind you he reckoned my balance was fine and my hearing didn't give me any difficulties so no real surprise there.

 

 

I wish something could be done against these parasites because that it what they are.

[Max1968]

Went to the CAB this morning and he just handed me a CAB Guide, although it was dated 2013. It states that I have to complete a Mandatory Consideration Form. I assumed a letter would suffice? Can't really find anything online about such a form so can someone clarify this? Thank you.

[reallymadwoman]

So far as I know, there is no form for mandatory reconsideration. Even if there was, a letter clearly headed 'mandatory reconsideration' would have the same effect.

[Max1968]

So far as I know, there is no form for mandatory reconsideration. Even if there was, a letter clearly headed 'mandatory reconsideration' would have the same effect.

 

thank you.

[Max1968]

BTW, I forgot to ask this. After visiting to Job Centre last week to claim JSA I was told to attend a group info session next week. Any idea what this is as I have never heard of such a thing?

[tommy456]

BTW, I forgot to ask this. After visiting to Job Centre last week to claim JSA I was told to attend a group info session next week. Any idea what this is as I have never heard of such a thing?

https://www.whatdotheyknow.com/request/123985/response/303663/attach/html/11/Group%20Information%20Sessions%2019.12.11.pdf.html

 

Gives some info, assuming that it is the same thing but is dated 2012 so not sure if anything has been changed, but it was/is not mandatory to accept the invite and attend, but a workroach can issue a job seekers direction to mandate that you attend , if they feel that you would be limiting your chances of gaining employment the same bs line they use for every JS direction no doubt

[Max1968]

Another question if I may?

 

 

I am just about to send a letter and other supporting info regarding mandatory reconsideration. I have a pre paid envelope for the benefit centre from previous correspondence but would you send by recorded delivery instead? I am just aware that they may deny receiving it etc.

 

 

Thoughts appreciated.

[antone]

Sure, you can send it Recorded. I know it seems like the DWP intentionally denies receiving letters, but that isn't actually what happens. They disappear into the system for days or weeks before finally showing up on someone's desk.

 

So by all means use a signed for service as that will certainly provide proof that you sent it if it should go missing. It won't get it through the system any faster, but it does provide you with some cover in case anyone tries to tell you that you missed the deadline.

[Max1968]

Great stuff thanks. What is very confusing is that all letters I have received before from ESA have been sent from Worthing Benefit Centre, Post Handling Site B, Wolverhampton, WV99 1QJ.

 

 

The decision report was sent from Hastings Benefit Centre, Post Handling Site B, Wolverhampton, WV99 1PY. I assume it's this address I reply too?

 

 

Yet another little game called confusion to play?!

[Max1968]

Well this gets more interesting by the minute. Just called the DWP to double check which address I should send my mandatory reconsideration request to. For starters I was amazed that someone picked up the phone on a Saturday so fair play to them.

 

 

They actually have a "brand new" address that I was totally unaware of and is not on any correspondence I have received. The girl on the phone the new address for ESA is :

 

 

Freepost, DWP, ESA 36

 

 

That's it. I have to pay the difference if I go recorded delivery but I think that's the way. Will back everything up as well. I assume all other addresses will work in the meantime because I suspect very few claimants know about this change.

[ripples]

That's interesting max, a girl amazed that I still wanted to write to them even though she had just told me I was wrong and she was right gabbled this address to me huffily last week and I didn't quite catch it.

[Max1968]

Well a couple of weeks on and the DWP have apparently received my mandatory reconsideration appeal so it's a case of sitting and waiting now although I don't hold out much hope.

 

 

In the meantime I went and signed on for JSA last week. At the signing my advisor mentioned that I had booked in to see the Disablement Advisor (or something to that effect). I denied that saying I had not spoken to anyone about this apparent meeting I had booked in for the following Monday. She kept on insisting that I had until eventually admitting that "she" was going to suggest it to me and book me in which she hadn't done and yet she had this meeting booked for 9.30 on the Monday!! I said I couldn't make the Monday due to a GP appointment which didn't go down well, but I stated that if I cancelled the GP I would then have to wait a good three weeks to get another appt. She then said, almost miraculously, that the Disablement Advisor was actually there so could I see here if she was free?! Obviously I said yes thinking that a refusal wouldn't go down too well.

 

 

I saw this foreign lady, who was lovely to be fair but due to my hearing problems made things difficult on the communication side. She asked what work I was looking for and I told her that I was appealing an ESA decision and my JSA advisor admitted that something like Data Entry is about the only thing I can presently do. The DA stated that I probably won't get any computer job because I didn't have a European Driving Licence which I initially found strange because in my head I am thinking (I have a car, what is she on about?!) It was then I realised it's a computer qualification which I have since found out isn't in my area until September!!

 

 

This went back and forth with me being rather negative to be fair, although I blame that on the fact that rather than being classed as a claimant with current medical conditions and disability I feel that I am treated like a naughty schoolboy who won't toe the line!!

 

 

Eventually I worked with her and she started to explain that she could put me in touch with a company who can help out with CV's, interview technique and the like. She however would not refer me if I "wasn't bothered" because it's her reputation on the line. I accepted because I thought it might be of some help.

 

 

Two days later and I received a phone call from a company called The Shaw Trust,. The first thing the girl said was that I had volunteered for "unpaid work". I was a bit confused as I couldn't remember that part of the conversation and stated that I assumed that it was just help and advice that I would be receiving. She kind of stuttered and said "oh yes we do that as well." I accepted an "interview" for this week.

 

 

I have done a bit of googling about the Shaw Trust and am now a bit concerned. I am appealing an ESA decision and am sending applications and job searching so I don't get sanctioned for JSA in the meantime but a paid job right now would have to be 100% right for my capabilities let alone "unpaid work" which I categorically am not keen on doing for a variety of reasons.

 

 

So have I done the wrong thing in accepting the interview? My Disablement Advisor said this is all voluntary but I am concerned that if I refuse to do any unpaid work then it will get back to the Job Centre and I could get my JSA sanctioned?

 

 

Anyone with experience on this issue?