Found "capable of work" after dual nsESA & UC Work Capability Assessment

Hi there, I'm hoping someone on the forum can advise me. I'll try and keep my story as brief as possible so that it's readable. Basically, I was made redundant last September - I believe the real reason for this was because my medical condition meant I wasn't keeping up with work (I am a maintenance engineer). I'd informed my boss that i'd had a diagnosis of 'advanced hip osteoarthritis in both hips' that will require surgery, and a week later I was chosen for redundancy. They probably did me a favor, as I was literally hiding half the day lying down due to the pain. I knew nobody would take me on again in my condition, so I went and saw the CAB for advice. They were great, and they told me all about the various benefits I could get. I found this place, paid the membership fee, and used to guides to apply for PIP, nsESA and UC. My first success was with PIP. I got maximum rate mobility, standard rate daily living. UC and nsESA, I went on the basic rate as everyone does, until i'd had my WCA. I was sent the ESA50 booklet last year, and returned it just before xmas. My telephone WCA was in April, and I finally got a result back this Tuesday, 16th May by telephone. I absolutely was confident that I was going to be told that I had passed, so to speak, and that i'd be in the support group, with benefit money increased. Unfortunately, pretty much the opposite happened. I was told that i'd been found 'capable of some kind of work', and that my ESA would now stop. I'll point out too that I wasn't actually aware that the WCA was a 'dual' one, although I had wondered (and asked on my journal months ago, which never got answered). Anyhow, the verdict came as quite a shock. I asked the woman on the phone "how on earth am I going to do a job, I can't walk more than a few paces, and I can't sit on a chair with my legs bent as it causes me extreme pain?" Her answer was "well you could travel 200 metres in a manual wheelchair". I replied, "no I couldn't as I can't sit for more that a few minutes with my legs bent, feet down, I spend my days now alternating between lying down, propped up with my feet on a foot stool, or on the floor trying to do physio to relieve the pain". She said, "well you can get wheelchairs with raised leg supports". The next point she brought up was "it says here n the assessors notes that you sit and watch tv for 90 minutes without pain". I replied, "not a chance I could do that, I am changing position about every 20 minutes due to pain, and that's using the comfiest of positions for me". She next said she could speak to her superior to see if what i'd said could change things (all of this was put in my ESA50 anyhow, so they should have known). I had a call back an hour later to say that they still consider me capable of work. I have asked for the Mandatory Reconsideration. The assessors report is being sent to me, and i've informed them I will also fill out and return the official Mandatory Reconsideration CRMR1 form. I'm flabbergasted!! On the ESA50 form, for the question "Moving Around And Using Steps", where it asks how far you can walk etc, I took advice from the UC/ESA guide here and rather than tick a box, I put a note next to the boxes saying 'NONE APPLICABLE'. Then in the space to write i'd put that walking even a few metres is "very painful due to the advanced stage of my hip osteoarthritis". I pointed out that crutches don't help me as stepping through and putting weight back on a leg causes "extreme pain". I never mentioned a wheelchair AT ALL, mainly because the question says "including the use of aids you usually use such as a manual wheelchair" etc. I don't have, or use one, so they are assuming I could wheel myself 200 metres!! To me, this suggests that unless you are completely paraplegic, ie, unable to use both your legs and arms, you can't score points for that descriptor!! Sorry for the wall of text, but i'm at a loss now. I can't see, if they are going to come back with "your arms could turn the wheels of a wheelchair, so you can move and score zero for that question", how i'm going to be able to come back with an answer to help change their decision. I basically live on my couch now - I sleep on it downstairs, as going up stairs is so painful I only go up there now if I need to shower. When i'm awake, I go as far as the downstairs toilet (in pain), then back to sit on the couch, with legs raised out straight. Then as the pain increases, either flat out on the couch, or to the floor where my wife helps manipulate my legs to try and ease the hip joints. All of this is in the ESA50 I did, and was what I said during my telephone assessment. But it would seem it's not enough, and now my ESA will stop, and the jobcentre will soon want me looking for some type of work via my UC. Do I stand any chance of getting this reversed with the mandatory reconsideration, or am I wasting my time? Thank you in advance.

Hi Gordon,

Thank you so much for giving your time to help me out. I can see now that I should have addressed the wheelchair question in my ESA50, I guess because I don't have one I didn't think it necessary to mention. I know that sitting, back straight, legs at 90 deg would be quickly very painful though. When the woman on the phone (the decision maker) who called Tuesday asked me if I could propel myself a distance in one, I mentioned I need my legs up - my fault here, but in reality it's more than that, I need my torso to be reclined quite a lot too, I just thought that was enough to tell her as I hadn't even thought of wheelchairs with leg rests. I think in my MR reply, I will have to be clear that the physical position I put myself in to be somewhat comfortable is actually slumped on the couch, with legs out straight on a foot stool. I would be in pain sat in an upright chair, even with legs out straight, if my torso is at 90 deg to my legs - it's that angle between legs and torso that makes a difference. My hip joints must push on nerves with knees up, and this effect is getting worse as the weeks go by (it's worse now that it was in December when I sent off the ESA50).

I will definitely wait until i've received the assessors report before sending back the CRMR1 form though. One quick question - I've looked at this form, and it asks which benefit am I disputing. I'm guessing I should be putting down both UC and nsESA? There's obviously no extra money received from having both (the CAB advised at the start of all this to do both, but the reason given was just that ESA is paid bi-weekly). The woman who called me with the bad news said "you'll still get UC", but I don't really get that as if they see me 'fit for work', wouldn't that then change to jobseekers allowance, and they'd force me to get a job? I feel I should put i'm disputing the decision on both benefits, but I just wondered what your opinion was?

Thank you in advance Gordon.

Hi again,

I thought I should do an update on how things are turning out with my "Ok to work" situation failure after having my joint UC/ESA assessment recently (I actually did an earlier update when I got the WCA assessors report back to read, but I must have forgotten to press the send button though as it was still in an editable box when I just logged back in, grr!!)

Anyhow, long story short - the assessors report seemed to list fairly accurately everything I had put in my ESA50, and comments I made during the phone assessment. That made their decision all the more baffling, as the comments showed that I would be unable to perform even the minimum activities for mobility by their standards. So I then went about filling out the Mandatory Reconsideration form, highlighting the fact again that the report didn't seem to argue with my claim of not being able to meet the minimum standards for mobility. I added in that I had not mentioned using a wheelchair, as the question in the ESA50 book says to ONLY mention items that you would USUALLY use. That was written differently in the assessors report, and i'm guessing she was quoting from a UC50 questionaire, NOT what I was sent (the ESA50). I said that that was unfair, and that I was answering the question exactly as it was asked in the booklet they sent. I then pointed out though, that if I HAD been asked inthe ESA50 if I would be able to use a manual wheelchair, I would have answered 'no', reason being that my condition makes sitting upright with thighs at right angles to my torso very painful after less than a minute due to my now end stage double hip arthritis. I felt I made a good case against the original decision, and sent off the CRMR1 form back to them.

Fast forward to today - I had an appointment with the consultant who will be doing my operation (when i've got my BMI down more). HE looked at my x-ray again, and said it was very bad, "end stage" as he put it. I had written to the hospital asking if he could write me a letter in my defence when I was doing my MR form, but his secretary said he couldn't until he's seen me. I asked him that, if my case fails (I didn't think it would though), could he now write me a letter. He said he will be writting up a report anyhow on my condition, and thought that would be enough evidence to make the DWP realise I can't do anything work related in my current condition. When I got home, I had the "you need to check your UC journal" message come up on my phone. I thought, "at last, this will be that stupid decision overturned at last". Nope! It was exactly the opposite - "We have looked atthe evidence used to make the decision and any new information you may have given us - We have not changed our decision"....

So basically it seems that regardless of how bad my physical condition is, there is no option available to avoid being made to get a job - either that, or just give in, have no source of income / lose my house / live on the street. I've left a message on my journal to be passed on to the control centre saying how disgusted I am with their decision, that I feel they have breached my human rights, and that I will be taking things to a tribunal (I also said I will be writing to my local MP).

Would anyone have any advice for me at this point please? I was really hoping not to have to go the tribunal route, but what else can I do if they just blatantly ignore their own mobility questions standards. It feels like i'm being given the middle finger by the DWP, I honestly now don't think i'd have passed the WCA even if i'd been completely paralysed.

Thank you in advance