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Tribunal Appeal, Help With Rule 29 & Reg35

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7 years 4 months ago #173637 by Andyboyo
I recently had an ESA assessment and was taken from the support group and placed into the work related activity group. I requested a mandatory reconsideration in the hope of being placed back in the support group but was unsuccessful.

I am now in the process of filling in an SSCS1 form to take my case to an appeal tribunal and would appreciate some advice.

In 2013 I found myself in the same situation as above and won an appeal tribunal which took me out of the WRAG group and into the support group on the grounds that rule 29 applied along with regulation 35. It is my understanding that this conclusion was reached due to the unpredictable nature of my Meniere's disease.

NOW, I am fully aware that my tribunal in 2013 has no bearing or influence with my current claim however I would like to explore rule 29 and regulation 35 with a view to seeing if they should or could apply to my new appeal.

I have a long history of chronic anxiety, suffer with depression and experience panic attacks. Also I have a confirmed diagnosis of Meniere's Disease and experience regular rotary attacks with little or no warning. The anxiety & panic attacks are exasperated by the fear of the rotary Meniere's attacks which make me incredibly dizzy such that everything in my vision appears moving repeatedly past me at a fast pace.

I am socially isolated and constantly fear being out of what I call my comfort zone. I am very reliant on my partner for support both physically and mentally.

The assessors report suggests I can engage in social activities based on the grounds that I get on with my neighbours and have engaged with health professionals over the telephone!

I am prescribed high dosages of medication for anxiety, depression and Meniere's disease and I have good support from my doctor who has confirmed in writing all of the points I have mentioned.

The mandatory reconsideration notice states that I do not meet any of the criteria of Schedule 3 to be placed in the support group.

Whilst I appreciate it may be difficult to offer advice with limited information I would be great-full if the staff/admins could advise me with regards to rule 29 and regulation 35 with respect to if there maybe a case to argue or attribute these with my appeal. I should also mention I have no knowledge on rule 29 or regulation 35, what they imply or mean.

I will elaborate or provide more information if needed.

Thank-you in anticipation for any help or advice that may be offered.

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7 years 4 months ago #173666 by Gordon
Replied by Gordon on topic Tribunal Appeal, Help With Rule 29 & Reg35
Ash

Regulations 29 and 35 deal with the risk of harm to the claimant or someone else if they are found Fit for Work (29) or capable of Work Related Activity (35).

The primary issue with these two Regulations is that they do not operate in the same way as the other ESA Descriptors do. So for example; if you previously had walking problems due to Arthritis on a previous assessment then there should be a presumption that you would still have these difficulties (I'm not suggesting that this is always done), when assessed again.

With Regulations 29 and 35 there is no presumption that the claimants still meets the criteria on reassessment, the claimant always has to show that they meet the criteria for these from scratch each time they are assessed and this will require new evidence each time.

The Regs. are discussed in more detail in the ESA Claim guides under

Should you be in the WRAG because of substantial risk?

and

Should you be in the support group because of substantial risk?

Gordon

Nothing on this board constitutes legal advice - always consult a professional about specific problems

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7 years 4 months ago #173675 by Derek4
Replied by Derek4 on topic Tribunal Appeal, Help With Rule 29 & Reg35
[quote="Ash
" post=173637]In 2013 I found myself in the same situation as above and won an appeal tribunal which took me out of the WRAG group and into the support group on the grounds that rule 29 applied along with regulation 35. It is my understanding that this conclusion was reached due to the unpredictable nature of my Meniere's disease.[/quote]
Hi Ash,

A tribunal cannot conclude that you satisfy reg 35 because of your illness - they must have been satisfied that you (or another person) would be placed at substantial risk if you were found not to have limited capability for work-related activities as a result of your illness.

It may help if you try to imagine what would happen if you were forced to carry out work related activities and the consequences this could have on your health, so you can try to convey this to the tribunal.

When you receive your appeal papers, the DWP should include a list of all the work related activities in your area that you could be required to undertake. It's worth noting that it is not sufficient for the DWP to identify one single activity that you could do without risk, as there is no guarantee that this is the activity that you would be doing if you are not placed back in the support group.

Good luck,

Derek

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7 years 4 months ago #173686 by Andyboyo
Replied by Andyboyo on topic Tribunal Appeal, Help With Rule 29 & Reg35
Thank you Gordon and Derek

I now have a better understanding of rule 29 and regulation 35 and will look into these further using the guides.

Derek you mentioned that I try to imagine what would happen if I was forced to carry out work related activities and the consequences this could have on my health. This is good advice so thanks for the suggestion.

Regards

Ash

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7 years 4 months ago #173690 by Andyboyo
Replied by Andyboyo on topic Tribunal Appeal, Help With Rule 29 & Reg35
I have been reading through the letters I have received in association with my ESA claim and I think may be lacking some usefull information which could help me with preparing my appeal.

Before I go any further let me tell you what documents I have received to-date in relation to my claim:

I have a Jobcentreplus letter received after my ESA50 form submission and assessment, this informs me of the outcome of my claim (being transfered from support group to WRAG) with details of my allowance and how it will be paid.

As a result of being transferred from the support group to the work related activity group I contacted Jobcentreplus and requested a copy of the assessors report. I received this document which is titled "Medical Report Form - ESA85A"

Having reviewed the ESA85A medical report I then contacted Jobcentreplus and requested a Mandatory Reconsideration... This was processed and I am in receipt of the Mandatory Reconsideration Notice a 3 page document.

Tonight I have been reading through your esa_appeal_subs.pdf document and the example submissions and I note there is references to the amount of points awarded to descriptors

In all of the aforementioned documents I have received from Jobcentreplus and the DWP there is no mention or reference to the points I have scored in the descriptors so I now feel very worried that I am missing vital information that would allow me to challenge my ESA claim in an appeal.

I am concerned that if I have to contact Jobcentreplus or the DWP for this information I am going to delay the preparation of my appeal and potentially run out of the time permitted in which I must get my appeal registered.

Am I entitled to the information which details the points awarded to the ESA descriptors on my ESA50?

Should this information have been provided to me along with the ESA85A medical report?

Can I send off the SSCS1 to start my appeal but advise in section 5 of the form "grounds for appeal" that I cannot at this time provide a complete overview why I am appealing as I am waiting for JSP/DWP to send me information detailing the descriptor points awarded in relation to my ESA50 form. Once I am in receipt of this information I will provide further details as to why I am appealing.

I am worried and concerned about sending in the SSCS1 appeal form and it being rejected so hope you can offer me further advice in this area.

Thank you

Ash

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7 years 4 months ago #173702 by Gordon
Replied by Gordon on topic Tribunal Appeal, Help With Rule 29 & Reg35
Ash

If you have a look at the ESA MR& Appeal guide there are examples of how to complete the SSCS1 form.

The only other document that might exist would be an LT54, which is completed by the Decision Maker, you would not have been sent this unless you requested it, but if one exists then it will be included in the DWP's submission to your appeal, a copy of which you will receive.

The ESA85A must show some reason for you having been awarded the WRAG, otherwise I think it very unlikely that the DM would have done this. Are there any references to "Schedule 2" or to Regulation 29? The Descriptors are identified by a 2 or 3 letter code, so for Moving Around it is "Ma" where "M" identifies the activity and "a" is the descriptor. These codes are explained in the WCA Handbook, there's a copy in the ESA section.

Gordon

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