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- JAF
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7 years 3 months ago #177285 by JAF
esa was created by JAF
Hi
I had assessment and was awarded 15 points for anxiety. I am so angry as I have had Degenerative disc disease/ sciatica and spondylosis for 20 plus years. The HCP stated I squatted more than half way, absolute lies, he never asked me to squat and he also stated that I have had no medical input until 2014 when I plainly told him I had seen several consultants since 1993 and had been offered disc replacement in 2003, which I declined, due to risks. I last worked in 1993 and he stated I hadn't worked for five years. He didn't even have my questionnaire. I am being advised to use reg 35 for my appeal (mandatory was refused ) I am so angry because I have anxiety and hardly go out and never on my own, due to the physical pain . I have heard that appeal success for reg 35 has declined and that the DWP are considering scrapping this rule. I did put 50 metres walking but they just seem to have ignored my physical condition. Can you please advise. Thank you
Julie
I had assessment and was awarded 15 points for anxiety. I am so angry as I have had Degenerative disc disease/ sciatica and spondylosis for 20 plus years. The HCP stated I squatted more than half way, absolute lies, he never asked me to squat and he also stated that I have had no medical input until 2014 when I plainly told him I had seen several consultants since 1993 and had been offered disc replacement in 2003, which I declined, due to risks. I last worked in 1993 and he stated I hadn't worked for five years. He didn't even have my questionnaire. I am being advised to use reg 35 for my appeal (mandatory was refused ) I am so angry because I have anxiety and hardly go out and never on my own, due to the physical pain . I have heard that appeal success for reg 35 has declined and that the DWP are considering scrapping this rule. I did put 50 metres walking but they just seem to have ignored my physical condition. Can you please advise. Thank you
Julie
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7 years 3 months ago #177320 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic esa
Julie
A few things immediately fro your post.
ESA separates the activities into physical ones (questions 1-10) and mental health issues (11-17). You can only score points for conditions that are of the same type as the question, So where you say you don't go out due to pain; Going Out is a mental health activity so any pain you have will not be considered for it.
ESA is not a walking test, it is a Mobility test! In addition to your walking it considers your ability to self-propel a manual wheelchair over the same distances, you do not need to be using a wheelchair or even to own one for it to be considered. SO even if you can show your walking is restricted, unless you can also show that you cannot self-propel the wheelchair you will still not score points.
AS to Reg. 35, there has been changes to the guidance on this. The latest ESA claims for Mental Health reasons has details of the changes.
The first stage to challenging a Decision is for you to request a Mandatory Reconsideration, this needs to be done in writing to the DWP, within one month of the Decision, to the office that dealt with your claim, have a look at our ESA MR & Appeal guide for details of the process, the ESA area also has template letters that you can use to make the request with.
www.benefitsandwork.co.uk/help-for-claimants/esa1
You should contact the DWP for a copy of the assessment report if you have not already done so, I would phone them but again follow up the request in writing. Once you have the assessment report you will have a better understanding of how the DWP Decision Maker has come to their conclusions and will then be able to argue against them.
Your primary task is to show that you meet the criteria, there are many reasons you may have failed, you need to address each of these but don't get bogged down in criticising the assessment report unless you can clearly show that it is incorrect, it is a lot easier to argue the facts of the situation;
"the assessor recorded that I walked 50m, I did but they have failed to document that I had to stop every 10m for a rest due to breathlessness"
than their opinions
"based on my observations of the claimant walking I believe that they can reliably walk more than 200m.
When you have a better idea of the issues with your claim, come back to the forum and we will do our best to help.
Gordon
A few things immediately fro your post.
ESA separates the activities into physical ones (questions 1-10) and mental health issues (11-17). You can only score points for conditions that are of the same type as the question, So where you say you don't go out due to pain; Going Out is a mental health activity so any pain you have will not be considered for it.
ESA is not a walking test, it is a Mobility test! In addition to your walking it considers your ability to self-propel a manual wheelchair over the same distances, you do not need to be using a wheelchair or even to own one for it to be considered. SO even if you can show your walking is restricted, unless you can also show that you cannot self-propel the wheelchair you will still not score points.
AS to Reg. 35, there has been changes to the guidance on this. The latest ESA claims for Mental Health reasons has details of the changes.
The first stage to challenging a Decision is for you to request a Mandatory Reconsideration, this needs to be done in writing to the DWP, within one month of the Decision, to the office that dealt with your claim, have a look at our ESA MR & Appeal guide for details of the process, the ESA area also has template letters that you can use to make the request with.
www.benefitsandwork.co.uk/help-for-claimants/esa1
You should contact the DWP for a copy of the assessment report if you have not already done so, I would phone them but again follow up the request in writing. Once you have the assessment report you will have a better understanding of how the DWP Decision Maker has come to their conclusions and will then be able to argue against them.
Your primary task is to show that you meet the criteria, there are many reasons you may have failed, you need to address each of these but don't get bogged down in criticising the assessment report unless you can clearly show that it is incorrect, it is a lot easier to argue the facts of the situation;
"the assessor recorded that I walked 50m, I did but they have failed to document that I had to stop every 10m for a rest due to breathlessness"
than their opinions
"based on my observations of the claimant walking I believe that they can reliably walk more than 200m.
When you have a better idea of the issues with your claim, come back to the forum and we will do our best to help.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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- JAF
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7 years 3 months ago #177350 by JAF
Replied by JAF on topic esa
I requested HCP's report when I asked for mandatory. They didn't send it and didn't phone me to ask for further evidence, just a letter stating that they hadn't changed their minds and that neither of the D M's or HCP had seen my questionnaire. My only option now is appeal. I am most annoyed because I cannot sit for long 10 mins is the norm and standing results in a crushing pain which forces me to lie down for relief. How they expect anybody to hold down a job in this situation is ridiculous. Many years ago when I used to drive, I was trapped in the car with my then young children due to a really bad sciatic attack, with cars beeping at me etc. Luckily my daughter got help and my husband was contacted at work. I think this was the start of my anxiety which has got much worse. I hardly ever go out and never alone and don't want to meet people except for immediate family. I have medication for pain, but because I don't want to take anti depressants I feel that this will go against me if I state reg 35 for anxiety. Thank you and a merry Xmas to all.
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- Gordon
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7 years 3 months ago #177352 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic esa
Julie
Please have a look at the ESA Claim guides in regard to Reg. 35, there has to be a substantial risk of harm to your or someone else if you are asked to perform Work Related Activity. The guide explains the three terms in more detail; "substantial", "risk of harm" and "Work Related Activity".
Gordon
Please have a look at the ESA Claim guides in regard to Reg. 35, there has to be a substantial risk of harm to your or someone else if you are asked to perform Work Related Activity. The guide explains the three terms in more detail; "substantial", "risk of harm" and "Work Related Activity".
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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