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Author Topic: ESA appeal - advice needed please  (Read 369 times)
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punkyveganmummy
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« on: February 27, 2019, 09:49:17 PM »

Firstly, I'm sorry for asking for help when I haven't been posting on the board. I did once join and post but couldn't remember my log-in details as it must have been a few years ago now.

I received my rejection call from the decision maker yesterday for my ESA claim. I knew it would be coming as I've read my medical report and it was pretty clear what their opinion was - the complete lack of understanding for my health conditions along with a number of outright lies on the report probably meant the decision maker didn't really have a choice.

I'm now awaiting the decision letter so I can fill in the Mandatory Reconsideration. I'm really hoping that my GP will write me a supportive letter to be sent in with this. I had to see a different GP when trying to get support with my claim and he was far from helpful.

I wondered if anyone could give me any advice on the appeal process (MR and tribunal) as I'm really scared about what will happen if I fail this process. I'm a single mum, struggling to take care of my 2 children. As well as CFS/Fibro, I have Endometriosis, IBS, Sciatic leg pain, vertigo and migraines. As I have to do certain things despite the pain/exhaustion, otherwise my children would not be cared for, they seem to fail me automatically on virtually everything.

Has anybody found a decision maker who actually fully considers the repeatedly, reliably, etc. part of the criteria? Or is it likely that my best chance would be trying to get them to acknowledge the exceptional circumstances part? Any advice would be greatly appreciated as I can feel myself sinking already and feel as though this is just the start. My only way of being able to care for my boys is to try to pace, although my responsibilities to them make this very difficult. What will happen if all of this appeal fails? How do people cope in this situation? Will I have to work and then end up losing my children because I can no longer take care of them? I have given up everything apart from my children and am terrified of not being able to care for them.

Thank you in advance for any advice offered. Emma.
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roger
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« Reply #1 on: February 28, 2019, 06:36:50 AM »

Hi Punky,

Aggie may be able to help but she's away at the moment. I'm sure she'll respond within the next couple of days.
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agapanthus
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« Reply #2 on: February 28, 2019, 06:18:35 PM »

Hello Punky. I am so sorry to hear what you are going through with the benefits system while trying to support your 2 children as well as yourself, with health issues. It must be a very worrying time for you, with a system that is not always fair and reasonable.

I had to go through the Mandatory Reconsideration myself but it was some years ago now, and things have moved on and seem to have become harder than ever, sadly. I did also help my son more recently and I felt from my own experience and his, that having evidence to show seemed to make a big difference to how they behaved - in my case, although I had 4 assessments in 5 years, I only had one face to face one, and my MR was decided in my favour on the paperwork alone. In my son's case he went from Incapacity Benefit to ESA and was put into the Support Group with no face to face at all. However, unlike me, he does not have ME but has severe mental illness and I was able to gather a lot of helpful letters from Drs etc.

So.... in your case I would definitely think that a letter from the GP could be helpful. Given that this one is not very supportive, could you write down some of the areas that it would be helpful for the letter to cover? I guess I am thinking of the likely areas where you feel you should be given points (eg mobility) that you can then clarify to the Dr what is and isn't possible for you?

I seem to recall that the 'repeatedly, reliably, etc' clause is actually written in on each page of the assessment form that you fill in? Or was when I did it last? While I would agree that some Decision Makers don't seem to properly consider these issues, in my mine it is absolutely key, and since it's actually stated on their own paperwork, I would 'ram it down their throat' as it were! At least, when I did the forms, I used to keep saying it over and over again on every point, if I felt that I could not do an action, and what would happen to me if I didn't. Of course you need to go through those 'lies' and points on your form that have been missed or misconstrued and explain why they are wrong, point by point if necessary.

In the past I used to recommend people to use the 'exceptional circumstances' rules and though I still think they are valid, I think the DWP have tried to find ways around them by stating what things people could possibly do e.g. suggesting lists of specific tasks that might be possible. I no longer claim ESA (am retired now) so I don't know what is being advised now on that.

On that score, I would highly recommend the Benefits and Work website if you don't use it already? The best info is in the downloadable booklets though and cost money (which I doubt you have just now) to join as a member. They have a specific booklet on appeals and reconsiderations. If money is tight, I am happy to let you have my copies via email attachment, but you would need to pm me and let me have your email address on that.

There is also an excellent online site on Facebook that has some good volunteers working on it (Jane Clout in particular) and many on the site have ME/CFS. I think they may have some of the Benefits and Work booklets in their Documents links. It's called UK M.E. and Chronic Illness Benefits Advice Group and is a closed group. They used to have a Buddy scheme there so you could get some help on the paperwork - ie give your copy for someone else to read over and advise of any improvments - don't know if they still do that but you could ask.

I cannot say what will happen to you 'worst case scenario' - I assume that you are claiming via UC now if this is a new application? Or were you on ESA before and this was a reassessment? I don't know much about UC but the booklets from B and W do cover this too. My immediate concern would be in the short term for you as it is not possible to claim any money re ESA while the Reconsideration is going on, so if you have no savings then your income will be very limited. The MR is supposed to take around 6 weeks I believe, but I am sure this must vary. If the MR fails and you go onto the tribunal you must I think tell the DWP that you have appealed (you have to do this independently yourself I believe now) and then they should reinstate your ESA at the basic rate and also give you the back pay on it. I think info on this will be in those B & W booklets.

Have you thought of contacting one of the ME charities for support with your situation? I believe that both the ME Association and Action for ME have helplines, as far as I know not members only.

Also maybe going to your nearest Citizens Advice for help with the wider issues, https://www.citizensadvice.org.uk/benefits/help-if-on-a-low-income/extra-help-if-youre-on-benefits-or-your-benefits-have-stopped/
https://www.citizensadvice.org.uk/consumer/energy/energy-supply/get-help-paying-your-bills/grants-and-benefits-to-help-you-pay-your-energy-bills/
 and/or Gingerbread https://www.gingerbread.org.uk/what-we-do/contact-us/helpline/

This too is a very useful organisation re support and grants etc
https://www.turn2us.org.uk/About-Us/Our-helpline

I hope some of this helps. This is not a very well used forum now unfortunately, so I am replying as fully as I can in case no one else chips in for you.

Aggie x




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punkyveganmummy
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« Reply #3 on: February 28, 2019, 09:19:49 PM »

Will try to reply properly tomorrow but just wanted to say thank you for the replies - makes me feel a little less alone in this. Hope everyone's as ok as possible today.
Emma.
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punkyveganmummy
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« Reply #4 on: March 06, 2019, 03:29:35 PM »

Sorry for the delay in replying. Feel like I've barely dragged myself through the last week, but feeling a little better now. I stupidly allowed myself to get really upset the day of the decision call and it completely wiped me out for a few days after. Just started to feel better from that then had hospital and doctors appointments this week as well as washing machine problems to deal with. Anyway, the good news is that I saw my main GP yesterday and he was very understanding and fully supportive of my claim. He was adamant that there was no way I'm in a fit state to work in my current state of health and was also clear that as working would impact my ability to care for my children, that should be considered under the special circumstances. He has agreed to write me a letter and I gave him a letter that I copied off one of the ME sites, explaining my situation and what information he should include if he feels it's applicable in my case. I'm yet to see the letter so unsure if it will be clear and persuasive enough to help my reconsideration, but after my experiences with the assessment and decision phone call it still feels good to know someone is on my side. I really don't think that I will be scored more points on reconsideration as they don't seem to be following the rules at all regarding repeatedly, etc. On my decision call I even mentioned that I have to do things that cause me a lot of pain because nobody else is here to help with the boys, and based on the reasonably, reliably, etc. shouldn't the level of pain and exhaustion be taken into account. She said that they can't consider pain as it's not measurable and they can't tell how much pain I'm in. I was under the impression that significant pain was supposed to be taken into account. Anyway, fingers crossed that I get a useful letter from GP. I will obviously highlight in my reconsideration letter about the lies in the assessment report as well as the lack of consideration given to repeatedly, etc, but I think my main hope is exceptional circs with GP support.

A few quick answers to Aggie's questions:

I did join Benefits and Work before filling in my form and used their guides to help me fill it in, although clearly the decision maker has decided to believe the assessor and disregard everything that I wrote. I will use B&W guides again during the appeal process. I'll start writing my letter when I know what the doctor's letter says so that I can refer to what he's said if appropriate and useful. I do appreciate the offer of copies of the guides - that was very kind of you.

I did phone Action for ME the other day and while they were very understanding and sympathetic of my situation, they weren't able to offer much advice - I think they have staff issues at the moment with the people who usually advise on benefits, etc. I have been trying to find the energy to contact the ME Association as well as possibly my local Citizens Advice, but struggling to fit it in. Thank you for mentioning the Facebook group - I will try to find time/energy to join that. I also hadn't considered Gingerbread so thanks again for that idea. Hoping I can get round to contacting these organisations as I think I need all the help I can get.

I am on ESA rather than UC. I think I'm in a rather unusual situation as I first claimed in 2015 and started receiving what I assume was the assessment rate, but then heard nothing other than sick note requests until last November when the form came through. I kept expecting to receive it and it never came, so just assumed I had gotten lost in their system but as the money was coming through and I knew how much they lack understanding for CFS, etc, I just kept sending in the notes until the inevitable happened. I'm not sure if I was awaiting assessment that whole time or if someone approved my original claim and I never got confirmation of it?

I'm very fortunate that I do have some savings from before I became ill so I can use that to fill the income gap at the moment. I've informed my council that I still need Housing Benefit despite my ESA stopping so as long as they don't stop that coming through then I should be fine in the short term. The decision maker told me I should claim UC but I'm scared that it will mess up all my other benefits that I rely on, and if I have to sign a form saying that I'm looking for work then I can't do that as I refuse to lie when I know I can't work.

Right, I'd best go as I need to have a rest before trying to collect my youngest from football club. Sorry if I forgot to answer any of the questions. I really appreciate the advice and support. It's nice to not feel quite so alone. My family are amazing in so many ways but as is often the case they do struggle to understand how much my health impacts on my abilities, so I appreciate knowing that some people do understand.

Take care everyone,
Emma. x
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CeeDee
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« Reply #5 on: March 06, 2019, 06:25:39 PM »


Has anybody found a decision maker who actually fully considers the repeatedly, reliably, etc. part of the criteria? Or is it likely that my best chance would be trying to get them to acknowledge the exceptional circumstances part? Any advice would be greatly appreciated as I can feel myself sinking already and feel as though this is just the start.


Hi Emma, sorry you are having to fight this. I find it stressful enough as a single person without having to worry about how it will affect children too.

I actually did find a decision maker who took repeatedly, reliably etc into account. I had my assessment last November, the assessor was deceptively nice, then wrote a report full of inaccuracies and misleading statements. I wrote a letter highlighting a few of the more objectively provable mistakes in the assessors report, and said there were a lot more I could write if it became necessary to go to tribunal.

Did you have anyone in the assessment room with you? In my letter I told them that my friend who was in the room would verify that the written report was different from what was actually said in the room.

For the first time in years of having to take my case to Tribunal, I actually got a phone call from a reasonable assessor, who had taken his time reading through all my documents, and wanted to clarify some points with me. I had written about problems with stamina and energy for a few of the descriptors, and that there was no activity that I could do repeatedly etc, without it putting me into a crash situation. He actually accepted this and gave me enough points.
I was a bit disappointed that, given his acceptance of those facts, he didn't also give me the Support Group due to the Exemption. But after initially looking like I was going to get turned down due to an unfair Report, I was placed in the WRAG group for 2 years, so it was a relief to get something.

If at all possible, if you can avoid going on U.C. while the MR is ongoing, you will be able to go back on ESA. If you fail the M.R. you can request, as Aggie said, to get put back onto ESA assessment rate while you wait for the Tribunal. if you are successful at either stage you can return to ESA on one of the groups.
However, once you have signed onto U.C. you can't go back to ESA, even after a successful MR or Tribunal.

The Facebook page is very friendly and helpful and I got a lot of good advice there, including having Jane Clout look over my form as part of their Buddy Scheme.

Good luck!
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agapanthus
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« Reply #6 on: March 06, 2019, 06:54:00 PM »

Thank you Emma for taking the time to let us know how things have been going. I am glad that CeeDee has shared her experience too, and that she had such good buddy support from Jane Clout on that Facebook group I mentioned, as I know she is excellent.

I am so pleased that you will get some decent help from your GP in the way of a letter - that is good news.

I am pretty shocked that the assessor told you that pain, not being measurable cannot be taken into account. I feel sure that is wrong. After all many things are not measurable e.g. mental health issues, but they are supposed to take them into account. I just googled this as I feel sure this assessor is incorrect and found this on the Benefits and Work site https://www.benefitsandwork.co.uk/personal-independence-payment-pip/glossary/1998-are-issues-like-pain-fatigue-and-safety-taken-into-account-for-personal-independence-payment-pip
Let me know if this link does not work and I will copy it out. However I can see as they say, that so much depends on the assessor, and on interpretation, but if someone is suffering a lot of pain then they cannot possibly be doing a task repeatedly or safely so the DWP are probably not interpreting this correctly as I see it if this is being ignored. I guess that is why people end up in Tribunals....

So.... according to Benefits and Work they are taken into account for PIP so I do not see that there should be a difference for ESA. I have a feeling that there must be higher level Tribunal caselaw on this, but I would need to rake around for that.

I will have to stop now as about to have dinner, but if I find any Caselaw on pain/fatigue I will let you know though I often find the legal stuff hard to follow.

I am so glad that you are using Benefits and Work. They do also have a forum too but it does not give very extensive help. However the booklets are really good.
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agapanthus
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« Reply #7 on: March 06, 2019, 08:09:54 PM »

Here's one of the Upper Tribunal decisions I was referring to. It's hard to get your head round all of it, but I think it means it's in favour of people with pain/exhaustion even though the lower Tribunal found against... what do you think? Personally I think it is wrong that such fine issues as this have to be decided by a narrow point of law on finite words than by common sense.

CE/5661/2014: Activity 1 (Mobilising): No regard should be had to walking with significant discomfort or exhaustion
Upper Tribunal Judge: Markus

In its statement of reasons the First-tier Tribunal recorded the claimant’s evidence as to the distances that he could walk and the pain or discomfort that he experienced. The thrust of his evidence was that he could walk distances of between 50 and 150 metres but in doing so experienced severe pain which sometimes caused him to be physically sick and sweat. 

However, in deciding that the claimant could repeatedly mobilise 100 metres the tribunal said:

“In considering the evidence with regard to his walking ability the first thing that should be said is that [the appellant] throughout his correspondence and indeed in evidence to the Tribunal was labouring under the impression that any walking undertaken with severe discomfort is to be disregarded.

That certainly of course is the position with regard to Disability Living Allowance but in relation to descriptor 1 under the ESA Regulations a person will not be found to score points under the descriptors if he can repeat the activity with reasonable regularity even if in pain. …if [the appellant] can repeatedly walk 200 metres with or even in substantial pain or severe discomfort without stopping then he will not be entitled to score points under the descriptor.”

In setting aside the tribunal’s decision, Upper Tribunal Judge Markus holds that the First-tier Tribunal appears to have thought that the prescribed pain threshold was “substantial pain or severe discomfort” rather than “significant discomfort or exhaustion”.

As a result, the tribunal did not make a finding of the degree of pain or discomfort suffered because of its conclusion that walking when in pain was to be disregarded.

This was wrong she says as:
“Subparagraph (i) of each descriptor for Activity 1 requires an assessment of the distance for which a claimant can mobilise “without stopping in order to avoid significant discomfort or exhaustion.

One construction of this provision is that, where a claimant continues to walk after the onset of significant discomfort or exhaustion, the descriptor applies because the claimant has not avoided significant discomfort or exhaustion.

The question for a tribunal is whether the claimant needs to stop in order to avoid significant discomfort or exhaustion, rather than whether the claimant in fact stops.”

Outlining that this interpretation is consistent with the previous incapacity for work regime and the original wording of the ESA Regulations she therefore concludes that a claimant’s ability to mobilise with significant discomfort or exhaustion should be disregarded for the purposes of Activity 1.
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