ESA Assessment

[Nystagmite]

That sounds like a good idea. Please let us know how you get on.

[odds]

That sounds like a good idea. Please let us know how you get on.

 

Hi,

 

Well today I had my very first WFI, so I went prepared with my ATOS "Assessment", ESA85 and a sheet I had typed up listing Medical History, Medication and side effects etc to make sure they are aware of my situation and just so that I didn't have to go through it all again with them.

Arrived 3 minutes before my appointment time and was seen 15 minutes after my due time. So the chap introduced himself sat us down at his desk and he just briefly explained what the appointment was for, he started to ask about how things are with me and at that point I offered him all the papers I had brought and was surprised when he said he didn't have time to read through all that, not in a nasty way though.

Anyway, he read through the one sheet that I had done myself and then asked about the incontinence, when I asked about access to toilets there were he informed me that there was none, only staff toilets. So I pushed him on the point of what happens if I need to clean myself up and change clothes if I had an 'accident'. His reply "You'd have to find the nearest public toilet".

Not really the answer you need to hear is it.

Anyway after a brief chat about home life, social life and medical background he just said I will see you in about 6 months. It all seemed very rushed with a couldn't careless attitude to be honest.

 

In total including travel to and from the JC(10 mins each way), waiting time(15 mins), 'interview', I was out of the house for approximately 55 minutes. So it wasn't such an unpleasant experience as I was expecting.

 

So now that my Mandatory Reconsideration has been denied looks like I may just throw the paperwork I have to a Tribunal, I've nothing to lose to be honest.

 

Thanks.

[Nystagmite]

Put a complaint into the job centre. And copy it to your MP. I know there have been reports of people with similar issues going to the job centre and being told there are no public toilets. I can't quite remember the outcome or the legal position on this.

[Nystagmite]

Just had a thought:

There's a charity called Bladder and Bowel Foundation. Now, I've had no contact with them, nor am I actually aware of the legal issues regarding toilet access. I am sure B&BF can advise you. Actually, I'm sure toilet access in your situation (many people can hold on) would be classed as a reasonable adjustment.

 

I don't know the frequency of WFIs. But I think that for many, it can be 6 months or less often. It sounds as though the adviser doesn't believe that calling you in is appropriate. Some people may (and I'm sure someone will come along and either confirm or deny what I'm about to say) get telephone WFIs as a reasonable adjustment under the Equalities Act.

 

Your medical evidence must be sent in at least 7 days before the tribunal. It must be relevant to the descriptors. You can't just say "I have problems with my bladder". You would need to give examples of the problems you have.

[odds]

Hi,

Thanks for the info, I will have to look into getting some form of medical support and advice to send off to appeal, I've only got two weeks left so I think I may have left it too late though.

 

Thanks

[**Margaret**]

:odds:

 

Whether or not a work focused interview can be conducted via phone is at the discretion of the individual work coach.

 

Here's the official view about public toilets in Jobcentres;

 

https://www.whatdotheyknow.com/request/jobcentre_toilet_policy#incoming-623661

 

And here's a card that might help;

 

http://www.bladderandbowelfoundation.org/resources/toilet-card/

 

Please don't wait for more medical evidence before you lodge your appeal. Far more important to meet the deadline, then source additional evidence. Do you see an inco nurse, or praps there's something in your medical records to evidence your problems. Via written subject access, £10 gets you everything that's on your doctor's computer. If you've not got form SSCS1 and leaflet SSCS1a they can be downloaded from;

 

http://www.justice.gov.uk/tribunals/sscs

(You need to click on 'forms')

 

Best wishes, Margaret.

[odds]

:odds:

Please don't wait for more medical evidence before you lodge your appeal. Far more important to meet the deadline, then source additional evidence. Do you see an inco nurse, or praps there's something in your medical records to evidence your problems. Via written subject access, £10 gets you everything that's on your doctor's computer. If you've not got form SSCS1 and leaflet SSCS1a they can be downloaded from;

 

http://www.justice.gov.uk/tribunals/sscs

(You need to click on 'forms')

 

Best wishes, Margaret.

 

 

Hi Margaret,

 

Thanks for those links, I have already downloaded the Form but am struggling to find an argument against the decision to be honest.

My doctors practice are pretty useless, as I have a questionnaire from my DLA claim a few years ago that says I have suffered from bowel and bladder problems, yet for this latest ESA claim they said no urology problems were mentioned on my records.

The DWP have said because I have not taken up the option of seeing a specialist to help me control my situation is against me, and the fact I don't get pads/aids prescribed rather than purchase them, which to be honest is a weak point from them because you can purchase better products than you would get prescribed.

After so many operations that all had other side effects that followed I have little faith in the advice and help offered, that is why I absolutely refused to go to any incontinence nurse for help. But to be honest that is a matter of pride and I have worked my life around the problem. Is there a regulation that says you must seek professional help to qualify ?

 

I have looked for a precedence on the wording of claims as mine states:

 

For the majority of the time is at risk

 

So the question is what is the 'majority of the time' as laid out in an ESA claim and what is 'at risk' , surely if if you are at risk for the majority of the time then the probability is that you will have an incidence to qualify for the support group.

 

Thanks.

[Nystagmite]

There's nothing to say you have to seek help, no. But it does seem that by seeking help, you've got the evidence.

[odds]

Hi,

Just a quick question regarding the SSCS1 form to lodge an appeal, would it be appropriate to just put something along the lines of.

 

I wish to appeal the decision to place me in the ESA WRAG Group on the grounds that I feel that full consideration was not given to the facts and documents supplied, and I intend to provide further documentation to support my appeal.

 

Is that enough to satisfy them until I can discuss it with my GP and hopefully get her to do a supporting letter.

 

Thanks.

[odds]

Hi,

Quick question, tonight my missus had a call at 19:15 from DWP asking for me, I wasn't in at the time to take the call but they said they will call again sometime next week.

I have sent my SSCS1 form back stating I am going to appeal with just a basic argument so I presume that it is regarding this. Does anyone have advice of what to have handy when taking the call, should I be entering into a question and answer scenario, are they phoning to say that I don't have grounds to appeal ?

I know it is only second guessing but I want to be prepared.

 

Thanks.

[reallymadwoman]

Personally, I would be out next time too. I don't think the phone is appropriate to discuss this sort of stuff. It's much better to do everything in writing so you have chance to think about it.

[odds]

Hi RMW,

 

I think I will follow that advice. When I requested the Mandatory Reconsideration I had a phone call some days later and before I knew it the guy was into a question and answer session.

 

Thanks

[id6052]

Not trying to second guess the DWP, but...

 

...in compiling the paperwork for your appeal hearing, they need to ensure they are providing the relevant papers and explanation in relation to the ACTUAL grounds of your appeal...

 

...if you have not explained the groundsof your appeal, how can they know what relevant papers to include?

[mazoo]

It seems to me I spend loads of my time re-doing SSCS1s that have been completed in such a way that they are only heading in one direction - tribunal.

 

Doing an SSCS1 that doesn't address the particular descriptors gives you no chance of winning at this point in my opinion. Any WROs out there want to disagree, feel free, but would love to hear the argument.

 

Explain which activity and descriptor applies and if you have evidence from GP, Consultant etc, reference it directly on the SSCS1 and send to HMCTS.

[mazoo]

Also meant to mention that there is a thing called a 'Can't Wait card' which is available through the IBS Network and for a small fee you get a Radar key which may help in lots of venues.

 

I know it doesn't guarantee JC+ let you use the loo, but it probably will. I have clients who have used it.

[**Margaret**]

:odds:

 

The very harsh continence descriptor for the support component of employment n support reads;

 

'At least once a week experiences,

 

loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder ...... sufficient to require the individual to clean themselves and change clothing.'

 

The 15 points for this activity ('at least once a month experiences loss of control ......') won't help you cos it's already been accepted you've limited capability for work.

 

The lesser descriptor, that you've been awarded, means that; for more time than not, if you stray too far from access to a loo, you risk loss of control sufficient to require cleaning and a change of clothing.

 

Here's the guidance that's given to the assessors;

 

https://www.gov.uk/government/publications/work-capability-assessment-handbook-for-healthcare-professionals

(Pages 35 - 36 and 105 - 107)

 

Currently (the outgoing government were probably thinking of it) there's no regulation that requires claimants of employment n support allowance to seek or accept medical intervention. If you've a justifiable reason for not doing so (for example, loperamide can aggravate respiratory problems) it shouldn't count against you.

 

But whilst I advised you against waiting for medical evidence to submit your appeal, Jobcentreplus do need to know why you disagree with their determination.

 

Best wishes, Margaret.

 

 

[odds]

Hi once again,

 

I thought I would update the thread because today I received a reply from HMCTS regarding my appeal. I had been toying with the idea of replying to them stating some replies to what the DWP had put in their response to my appeal, however I had basically just put everything to one side and accepted that I would have to go along with the ESA Merry go Round.

 

Right, on to the letter, and it looks as if the Tribunal have agreed in my favour. It states:

 

1. The Appeal is allowed

 

2. The decision made by the Secretary of State on xx/xx/2015 is set aside

 

3. Mr Odds is entitled to ESA with the support component

 

4. The issue of Limited Capability for Work is not in dispute between the parties

 

5. The following activity and descriptor from from Schedule 3 of the ESA regulations 2008 applied:

 

8. Absence or loss of

control whilst conscious

leading to extensive

evacuation of the bowel

and/or bladder, other than

enuresis (bed-wettjng)

despite the wearing or use

of any aids or adaptations

which are normally, or

could reasonably be, worn

or used.

 

--------------------------------

 

At least once a week experiences:

(a) loss of control leading to extensive

evacuation of the bowel and/or voiding of the

bladder; or

(b) substantial leakage of the contents of a

collecting device sufficient to require cleaning

and a change in clothing.

 

By reason of removal of part ol his bowel Mr Odds is significantly limited,

in particular in controlling his bowel. Limited capability for work is not in

dispute between the parties. The above Schedule 3 descriptor is satisfied. ln

reaching its decision the Tribunal placed particular reliance upon the evidence

of the appellant.

 

Any recommendation given below does not form part of the Tribunal's

decision and is not binding on the Secretary of State.

 

The Tribunal recommends that the Department does not reassess Mr.

Odds within 24 months from today's date.

 

So there we have it, I submitted nothing extra to the tribunal and yet we arrive at two completely different decisions, maybe the Doctors looking at Tribunal notes have a better understanding of certain medical issues and effects they cause rather than relying on an ATOS HCP and someone sat at a desk at the DWP.

And now the big question. How often do the DWP appeal against the cases that go against them at a tribunal ?

 

Thanks to everyone for the advice given, and if I hear more I will update again.

[Nystagmite]

Well done and thanks for comin back and telling us the outcome.

 

Talking in general - you will always find that people will interpretate the evidence differently.

[Mr.P]

And now the big question. How often do the DWP appeal against the cases that go against them at a tribunal ?

 

Based on what others have said in the past, the DWP can not appeal a tribunal decision unless there has been an error in law. The tribunal has ruled you are entitled to ESA with the support component based on the available evidence, and the DWP is bound by this decision.

[Nystagmite]

Based on what others have said in the past, the DWP can not appeal a tribunal decision unless there has been an error in law. The tribunal has ruled you are entitled to ESA with the support component based on the available evidence, and the DWP is bound by this decision.

 

This is right and it's pretty rare for DWP to appeal the decision.

 

You should get a letter from DWP stating that you're in the support group once they've looked at the decision.

[odds]

Thank you Nystagmite and Mr.P for the reassurance, I was having visions of them plodding on and dragging the case further.

I won't be dreading the next Brown envelope that drops on the doormat now

 

Thanks.

[Guest]

Well done. A tribunal found in my favour a few yrs back, they used the special circumstances option. I did wonder if the dwp would appeal that but they didnt. I cant see they will appeal yours either. As others have said the dwp would need an error in law to do so, so its not going to happen.

[Nystagmite]

You should get a letter within the next few weeks or so. You'll also get some backpay.

 

In my case, (DLA) I got the backpay the day before the letter. So if you get a random amount of money from DWP, that would be why!

[odds]

You should get a letter within the next few weeks or so. You'll also get some backpay.

 

In my case, (DLA) I got the backpay the day before the letter. So if you get a random amount of money from DWP, that would be why!

 

I hadn't even thought of that as I was still on the same rate as I was when on IB, so is this backdated to when they initially put me on ESA WRAG ?. I know it's not much difference but that was back in Jan/Feb time.

 

Thanks.

[**Margaret**]

:odds:

 

And all without the possibility of very personal questions at an oral hearing.

 

 

Whether you've any arrears to come will depend on your rate of incapacity benefit immediately prior to reassessment. Something called transitional protection means you'll be paid the higher of the two rates between employment n support with the support component or your final rate of incapacity benefit.

 

Margaret.