- Posts: 51284
× Members
ESA help
- Christine McDonald
- Topic Author
10 years 8 months ago - 10 years 8 months ago #124457 by Christine McDonald
ESA help was created by Christine McDonald
Hi
having read all the help topics regarding ESA I think I have done myself a great injustice during the process of my claim. I suffer from Chronic Fatigue Syndrome (although I have not been diagnosed by the powers that be - am still on the 'waiting list' for 2 years now) and lost my job in October last year. I claimed ESA until May this year when after filling in the Questionnaire and attending the Work Capability Assessment, it was deemed that I was fit for work. I asked for a re-consideration, giving them as much information as I could about my day to day activities but still did not 'score any points' I now have a date to go to a tribunal to try to overturn their decision.
having read as many posts as I can on here and other sites about various claims etc I now realise the mistake I have made. all through the process I have told them how I manage my condition on a day to day basis, how my illness affects my day to day life etc but in hindsight, that is not what I should have been telling them. I should have told them as though I was working and how it affects me whilst holding down a job..
obviously, now, I pace my activities and use only the energy I have in any given day, I manage to get through most of the day without needing to sleep although I do take regular rests. I have admitted to being able to walk 200 mtrs although I tried to argue that 'repeatedly' I could not. the other discriptors were dismissed in much the same way, because I could look after myself I scored no points. I pointed out that when I was exhausted I was unaware of dangers to myself and constantly burned or cut myself accidently, they said I scored no points because I was aware that I was unaware of the dangers?? and could take steps to avoid those situations. i asked that they take the special circumstances into account but they said that i did not fit that criteria.
i am quite new to the benefits system, having worked most of my adult life and did not realise how much of a fight you had to face to receive any help!!
having given you a brief outline of what has happened, and the position i have placed myself in through lack of knowledge and naivety, is there anything you could recommend that would help my situation. my date for court is 19th Sept, a lot sooner than i was thinking, having been told it could take months for my case to come up.
yours hopefully
having read all the help topics regarding ESA I think I have done myself a great injustice during the process of my claim. I suffer from Chronic Fatigue Syndrome (although I have not been diagnosed by the powers that be - am still on the 'waiting list' for 2 years now) and lost my job in October last year. I claimed ESA until May this year when after filling in the Questionnaire and attending the Work Capability Assessment, it was deemed that I was fit for work. I asked for a re-consideration, giving them as much information as I could about my day to day activities but still did not 'score any points' I now have a date to go to a tribunal to try to overturn their decision.
having read as many posts as I can on here and other sites about various claims etc I now realise the mistake I have made. all through the process I have told them how I manage my condition on a day to day basis, how my illness affects my day to day life etc but in hindsight, that is not what I should have been telling them. I should have told them as though I was working and how it affects me whilst holding down a job..
obviously, now, I pace my activities and use only the energy I have in any given day, I manage to get through most of the day without needing to sleep although I do take regular rests. I have admitted to being able to walk 200 mtrs although I tried to argue that 'repeatedly' I could not. the other discriptors were dismissed in much the same way, because I could look after myself I scored no points. I pointed out that when I was exhausted I was unaware of dangers to myself and constantly burned or cut myself accidently, they said I scored no points because I was aware that I was unaware of the dangers?? and could take steps to avoid those situations. i asked that they take the special circumstances into account but they said that i did not fit that criteria.
i am quite new to the benefits system, having worked most of my adult life and did not realise how much of a fight you had to face to receive any help!!
having given you a brief outline of what has happened, and the position i have placed myself in through lack of knowledge and naivety, is there anything you could recommend that would help my situation. my date for court is 19th Sept, a lot sooner than i was thinking, having been told it could take months for my case to come up.
yours hopefully
Last edit: 10 years 8 months ago by Gordon.
Please Log in or Create an account to join the conversation.
- Gordon
- Offline
Less More
10 years 8 months ago - 10 years 8 months ago #124460 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic ESA help
CM
Welcome to the forum
In case you are not aware, your real name appears to be showing in the forum, if you want to change this then follow the instructions in the following FAQ
My full name is showing, how can I stop it?
Although the ESA assessment results in a Decision about your ability to work, it does not actually look at your ability to work with one exception (see below), rather it looks at 17+1 areas of functionality and scores you on each, once you reach a certain level of incapacity the benefit can be awarded. So whilst some of the Descriptors (questions) could be considered to look at your ability in work environment, this is not the case and you should answer the questions as you are affected.
It is really important that you understand the actual wording of each Descriptor as they usually have several aspects and they all need to be addressed in order for a claimant to score points. As an example, Question 1 (Mobilising) is not a walking test as it also considers your ability to propel a manual wheelchair over equivalent distances, whether you use or even own a wheelchair is not relevant as long as the usage can be considered as reasonable.
ME/CFS is a difficult illness to document on the ESA50 and I am afraid this will not be helped if there is not a formal diagnosis (I am aware that there is no specific test for ME), however, we do have members who have been placed in the Support Group with this illness, so it is possible to be successful.
The Tribunal will look at you claim from scratch and with no preconceptions from the original Decision. You have an opportunity to make a submission of why you meet the Descriptors and to submit any new evidence that you have, you should aim to have this with the Tribunal Service no later than 7 days before your hearing and ideally 14 days if possible, this obviously gives you little time to prepare something.
As ME is a fluctuating condition you should talk about how you are the majority of the time, so break you time down into three sections for simplicity; the majority of the time, when you are at your worst and when you are your best, in your submission refer to the first two and allow the Tribunal panel to figure our how you are when you are at your best. You ability to do things should only be considered based on how you are for the majority of the time, so if you can walk 200m one day a week, but could not walk 100m 5 days a week and 50m 1 day a week then it would be the 100m that should be looked at (bearing in mind my comment about the wheelchair).
Your activities are also limited by any significant discomfort or breathlessness you have and must also be repeatable, so again picking on the walking; if you can on those 5 days walk 100m but could not do so again that day then you should not be considered as being able to walk it, or if you are breathless from the exertion before the 100m again it should not count.
You need to explain the things you cannot do, rather than those you choose not to, why you cannot and what would happen if you did. Concentrate on the Descriptors that you would reasonably expect to score points for, you should not ignore the others but you have limited time and there will be some where you will simply not score points because they are not relevant.
You should have a copy of the ESA85 assessment report, have a look through it as this is an important piece of evidence that the panel will consider, point out where you disagree and why and if possible relate it to your medical evidence.
Finally, it is possible to qualify even if you do not meet any of the Descriptors, there are two Regulations; 29 for the WRAG and 35 for the Support Group. These look at whether there would be an overall danger to your health if you were to be found Fit for Work (29) or capable of Work Related Activity (35), you can talk about the problems your ME causes in a more general sense and specifically in the context of your working, so as example; if travelling to work would tire you out so much that you would then be unable to do any work, then this would be relevant, but you also need to be aware that they can take into account any reasonable accommodations that an employer might make which includes home working.
I would recommend that you use our ESA Claim guides to help you write your submission. See
www.benefitsandwork.co.uk/help-for-claimants/esa1
If you have any questions, then please reply to this post and we will do our best to help.
Gordon
Welcome to the forum
In case you are not aware, your real name appears to be showing in the forum, if you want to change this then follow the instructions in the following FAQ
My full name is showing, how can I stop it?
Although the ESA assessment results in a Decision about your ability to work, it does not actually look at your ability to work with one exception (see below), rather it looks at 17+1 areas of functionality and scores you on each, once you reach a certain level of incapacity the benefit can be awarded. So whilst some of the Descriptors (questions) could be considered to look at your ability in work environment, this is not the case and you should answer the questions as you are affected.
It is really important that you understand the actual wording of each Descriptor as they usually have several aspects and they all need to be addressed in order for a claimant to score points. As an example, Question 1 (Mobilising) is not a walking test as it also considers your ability to propel a manual wheelchair over equivalent distances, whether you use or even own a wheelchair is not relevant as long as the usage can be considered as reasonable.
ME/CFS is a difficult illness to document on the ESA50 and I am afraid this will not be helped if there is not a formal diagnosis (I am aware that there is no specific test for ME), however, we do have members who have been placed in the Support Group with this illness, so it is possible to be successful.
The Tribunal will look at you claim from scratch and with no preconceptions from the original Decision. You have an opportunity to make a submission of why you meet the Descriptors and to submit any new evidence that you have, you should aim to have this with the Tribunal Service no later than 7 days before your hearing and ideally 14 days if possible, this obviously gives you little time to prepare something.
As ME is a fluctuating condition you should talk about how you are the majority of the time, so break you time down into three sections for simplicity; the majority of the time, when you are at your worst and when you are your best, in your submission refer to the first two and allow the Tribunal panel to figure our how you are when you are at your best. You ability to do things should only be considered based on how you are for the majority of the time, so if you can walk 200m one day a week, but could not walk 100m 5 days a week and 50m 1 day a week then it would be the 100m that should be looked at (bearing in mind my comment about the wheelchair).
Your activities are also limited by any significant discomfort or breathlessness you have and must also be repeatable, so again picking on the walking; if you can on those 5 days walk 100m but could not do so again that day then you should not be considered as being able to walk it, or if you are breathless from the exertion before the 100m again it should not count.
You need to explain the things you cannot do, rather than those you choose not to, why you cannot and what would happen if you did. Concentrate on the Descriptors that you would reasonably expect to score points for, you should not ignore the others but you have limited time and there will be some where you will simply not score points because they are not relevant.
You should have a copy of the ESA85 assessment report, have a look through it as this is an important piece of evidence that the panel will consider, point out where you disagree and why and if possible relate it to your medical evidence.
Finally, it is possible to qualify even if you do not meet any of the Descriptors, there are two Regulations; 29 for the WRAG and 35 for the Support Group. These look at whether there would be an overall danger to your health if you were to be found Fit for Work (29) or capable of Work Related Activity (35), you can talk about the problems your ME causes in a more general sense and specifically in the context of your working, so as example; if travelling to work would tire you out so much that you would then be unable to do any work, then this would be relevant, but you also need to be aware that they can take into account any reasonable accommodations that an employer might make which includes home working.
I would recommend that you use our ESA Claim guides to help you write your submission. See
www.benefitsandwork.co.uk/help-for-claimants/esa1
If you have any questions, then please reply to this post and we will do our best to help.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Last edit: 10 years 8 months ago by Gordon.
Please Log in or Create an account to join the conversation.
- pusscatsmum
- Offline
Less More
- Posts: 695
10 years 8 months ago #124463 by pusscatsmum
Replied by pusscatsmum on topic ESA help
I would try and get an apt with a Consultant who deals with CFS/ME asap. You may have to go Private if time is a consideration but you can get it thru the NHS too. Ask your GP to see who deals with such cases in order to get a diagnosis.
This will help you and help to show ATOS/DWP that you have sought help in th right direction.
This will help you and help to show ATOS/DWP that you have sought help in th right direction.
Please Log in or Create an account to join the conversation.
Moderators: Gordon, Gary, BIS, Catherine, Wendy, Kelly, greekqueen, peter, Katherine, Super User, Chris, David