Advice needed please re ESA Appeal process

Gordon wrote:

del wrote: In preparing my breakdown to submit for reconsideration/appeal would it be okay to give a description of the negative effects of previously attending WFIs at Job Centre to support my reasons for appealing? The reason I ask is because the negative effects I feel give some indiction as to why I personally think I fit the support group. Also, I believe my medical professionals evidence also backs this.

Yes you can, being unable to perform Work Related Activity is at the heart of the Exceptional Circumstances Regulation 35.

Gordon

Thanks Gordon, that is a great help knowing about Reg 35. Does being able to repeat, reliably & safely and also majority of times also come under Reg 35 or is it a different thing altogether?

del wrote:

Gordon wrote:

del wrote: In preparing my breakdown to submit for reconsideration/appeal would it be okay to give a description of the negative effects of previously attending WFIs at Job Centre to support my reasons for appealing? The reason I ask is because the negative effects I feel give some indiction as to why I personally think I fit the support group. Also, I believe my medical professionals evidence also backs this.

Yes you can, being unable to perform Work Related Activity is at the heart of the Exceptional Circumstances Regulation 35.

Gordon

Thanks Gordon, that is a great help knowing about Reg 35. Does being able to repeat, reliably & safely and also majority of times also come under Reg 35 or is it a different thing altogether?

Hi d,

You are getting yourself a bit mixed up.

To be classed as being able to carry out any of The WRAG or SG "Functional Descriptors" as below :

WRAG (LCW)Schedule 2 Descriptors

SG (LCWRA)Schedule 3 Descriptors

You must be able to carry them out Repeatedly, Reliably and Safely for the "Majority" of the time (> 50% of the time) if you can't, then you should be classed as not being able to carry them out at all.

Also with respect to qualifying for The SG, ESA Reg 34 (2) comes into play :

“A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor”

From :

www.legislation.gov.uk/uksi/2008/794/regulation/34/made

So with respect to the SG and ESA Reg 34 (2) not only must you be able to carry out any of The SG Activities (Descriptors) for the majority of the time, you must be able to carry them out on the majority of occasions that you attempt them.

If you do not qualify for The SG under any of The Schedule 3 "Functional Descriptors" You can qualify under ESA Reg 35 (2) (a) and (b) as below :

" 35.(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if—

(a)the claimant suffers from some specific disease or bodily or mental disablement;

and

(b)by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity."

From :

ESA Reg 35 for entry to The SG (LCWRA)

So you would first have to prove ESA Reg 35 (2) (a) in that : "the claimant suffers from some specific disease or bodily or mental disablement;" , and then provide evidence of ESA Reg 35 (2) (b), in that : "by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity."

i.e. Substantial Risk would be caused to yourself or another person if you were compelled to take part in WFI or WRA, and not placed into The SG.

ESA Reg 35 is classed as a "Non Functional Descriptor".

We advise that where possible you do not rely alone on qualifying under ESA Reg 35, and use it as a back up to any of the "Functional Descriptors" that you feel apply to you.

bro58

bro58 wrote:

del wrote:

Gordon wrote:

del wrote: In preparing my breakdown to submit for reconsideration/appeal would it be okay to give a description of the negative effects of previously attending WFIs at Job Centre to support my reasons for appealing? The reason I ask is because the negative effects I feel give some indiction as to why I personally think I fit the support group. Also, I believe my medical professionals evidence also backs this.

Yes you can, being unable to perform Work Related Activity is at the heart of the Exceptional Circumstances Regulation 35.

Gordon

Thanks Gordon, that is a great help knowing about Reg 35. Does being able to repeat, reliably & safely and also majority of times also come under Reg 35 or is it a different thing altogether?

Hi d,

You are getting yourself a bit mixed up.

To be classed as being able to carry out any of The WRAG or SG "Functional Descriptors" as below :

WRAG (LCW)Schedule 2 Descriptors

SG (LCWRA)Schedule 3 Descriptors

You must be able to carry them out Repeatedly, Reliably and Safely for the "Majority" of the time (> 50% of the time) if you can't then you should be classed as not being able to carry them out at all.

Also with respect to qualifying for The SG, ESA Reg 34 (2) comes into play :

“A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor”

www.legislation.gov.uk/uksi/2008/794/regulation/34/made

So with respect to the SG and ESA Reg 34 (2) not only must you be able to carry out any of The SG Activities (Descriptors) for the majority of the time, you must be able to carry them out for the majority of occasions that you attempt them.

If you do not qualify for The SG under any of The Schedule 3 "Functional Descriptors" You can qualify under ESA Reg 35 (2) (a) and (b) as below :

" 35.(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if—

(a)the claimant suffers from some specific disease or bodily or mental disablement;

and

(b)by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity."

From :

ESA Reg 35 for entry to The SG (LCWRA)

So you would first have to prove ESA Reg 35 (2) (a) in that"the claimant suffers from some specific disease or bodily or mental disablement;" , and then provide evidence of ESA Reg 35 (2) (b), in that "by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity."

i.e. Substantial Risk would be caused to yourself or another person if you were compelled to take part in WFI or WRA, and not placed into The SG.

ESA Reg 35 is classed as a "Non Functional Descriptor".

We advise that where possible you do not rely alone on qualifying under ESA Reg 35, and use it as a back up to any of the "Functional Descriptors" that you feel apply to you.

bro58

Thanks bro58, the above is an excellent help for me and yes I am a bit confused actually more than a bit Think this was a case of the obvious was staring me right in the face but brain fog was blocking me from seeing it!

I am now clearer in my understanding and can see now where I was getting confused. I have been reading over court/tribunal cases and got confused as I could not find majority of times in Reg 35 and was looking for another Reg as I knew there was another one that judges had mentioned and I thought it relates to me. I did not connect it to "Functional Descriptors" . I understand now and will definitely be using the functional descriptors which was my intention and knowing now they relate to Reg 34 gives me the missing Reg link in my brain

Thanks again for all the help, I would be lost if it was not for this site and being able to access it for help, it helps take some of the stress out of the whole scenario.

del wrote:

bro58 wrote:

del wrote:

Gordon wrote:

del wrote: In preparing my breakdown to submit for reconsideration/appeal would it be okay to give a description of the negative effects of previously attending WFIs at Job Centre to support my reasons for appealing? The reason I ask is because the negative effects I feel give some indiction as to why I personally think I fit the support group. Also, I believe my medical professionals evidence also backs this.

Yes you can, being unable to perform Work Related Activity is at the heart of the Exceptional Circumstances Regulation 35.

Gordon

Thanks Gordon, that is a great help knowing about Reg 35. Does being able to repeat, reliably & safely and also majority of times also come under Reg 35 or is it a different thing altogether?

Hi d,

You are getting yourself a bit mixed up.

To be classed as being able to carry out any of The WRAG or SG "Functional Descriptors" as below :

WRAG (LCW)Schedule 2 Descriptors

SG (LCWRA)Schedule 3 Descriptors

You must be able to carry them out Repeatedly, Reliably and Safely for the "Majority" of the time (> 50% of the time) if you can't then you should be classed as not being able to carry them out at all.

Also with respect to qualifying for The SG, ESA Reg 34 (2) comes into play :

“A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor”

www.legislation.gov.uk/uksi/2008/794/regulation/34/made

So with respect to the SG and ESA Reg 34 (2) not only must you be able to carry out any of The SG Activities (Descriptors) for the majority of the time, you must be able to carry them out for the majority of occasions that you attempt them.

If you do not qualify for The SG under any of The Schedule 3 "Functional Descriptors" You can qualify under ESA Reg 35 (2) (a) and (b) as below :

" 35.(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if—

(a)the claimant suffers from some specific disease or bodily or mental disablement;

and

(b)by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity."

From :

ESA Reg 35 for entry to The SG (LCWRA)

So you would first have to prove ESA Reg 35 (2) (a) in that"the claimant suffers from some specific disease or bodily or mental disablement;" , and then provide evidence of ESA Reg 35 (2) (b), in that "by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity."

i.e. Substantial Risk would be caused to yourself or another person if you were compelled to take part in WFI or WRA, and not placed into The SG.

ESA Reg 35 is classed as a "Non Functional Descriptor".

We advise that where possible you do not rely alone on qualifying under ESA Reg 35, and use it as a back up to any of the "Functional Descriptors" that you feel apply to you.

bro58

Thanks bro58, the above is an excellent help for me and yes I am a bit confused actually more than a bit Think this was a case of the obvious was staring me right in the face but brain fog was blocking me from seeing it!

I am now clearer in my understanding and can see now where I was getting confused. I have been reading over court/tribunal cases and got confused as I could not find majority of times in Reg 35 and was looking for another Reg as I knew there was another one that judges had mentioned and I thought it relates to me. I did not connect it to "Functional Descriptors" . I understand now and will definitely be using the functional descriptors which was my intention and knowing now they relate to Reg 34 gives me the missing Reg link in my brain

Thanks again for all the help, I would be lost if it was not for this site and being able to access it for help, it helps take some of the stress out of the whole scenario.

Hi d,

No problem

As I said, you can always cite ESA Reg 35 "Substantial Risk" as well, as a back up to any of the "Functional Descriptors".

bro58

I want to obtain all documents relating to me and my Jobcentre Plus Adviser appointments. Would I send the SAR to my benefits office, Jobcentre or both?

I am not sure about this because I do not know if both hold separate information re Adviser appointment outcomes.