Advice please? ESA Tribunal

Hi, wondering if I can have a little advice?

I've agreed to act as representative for a friend at an ESA tribunal. When I agreed to this, I really didn't know what I was doing, I just assumed it meant to speak for him on the day. I didn't realise I had to provide evidence etc.

I've only just started to research my role now, which is too late really. The hearing is on 19th September.

I don't have 100% of the information about his case, but he was on incapacity benefit before, and then ESA. I don't know what triggered the reassessment, but he had to attend a medical, and scored "0" on every point. ESA then stopped the benefits. After querying this, the Job Center said he must appeal. The ESA payments were reinstated, but at a reduced amount until the hearing.

We filled out the form for the initial appeal, but the decision maker found all evidence supported the original decision. We then appealed again, and have to attend the tribunal.

I really don't know what to do, or what to provide as evidence. We only have a couple of weeks left.

I've been through the medical report, but seeing as they're so tough, I'm not sure how to argue against any of it. He has back problems and hypertension. Back problems to the point of not being able to walk more than maybe 10-15 meters. He lays on the sofa most of the day because of the pain. Sitting hurts, standing hurts, walking hurts.

The medical assessor seems to think that, because he can watch TV, get himself washed and dressed, slowly walk up the stairs in his home, and stand for 2 minutes, that he is fit to work. Doing what I wonder?

It also says in the report, that just because a movement gives pain, doesn't mean the movement cant be done. It also suggests the use of a wheelchair.

Anyway, is there something I can do to help this case? I'm going to approach his doctor to try and get her opinion on his condition in writing, and show her the report, to see if she contests any of the points.

Apart from that, not sure what to do. It would be better if he represents himself? Should I contact CAB and see if they can help?

If we can't win the appeal, the only other option is to go back on JSA, but how is that going to work if he can't even make it to the job center. Can't work, can't claim benefits, too young for retirement. What else is there.

Thanks so much in advance.

TraderT wrote: Hi, wondering if I can have a little advice?

I've agreed to act as representative for a friend at an ESA tribunal. When I agreed to this, I really didn't know what I was doing, I just assumed it meant to speak for him on the day. I didn't realise I had to provide evidence etc.

I've only just started to research my role now, which is too late really. The hearing is on 19th September.

I don't have 100% of the information about his case, but he was on incapacity benefit before, and then ESA. I don't know what triggered the reassessment, but he had to attend a medical, and scored "0" on every point. ESA then stopped the benefits. After querying this, the Job Center said he must appeal. The ESA payments were reinstated, but at a reduced amount until the hearing.

We filled out the form for the initial appeal, but the decision maker found all evidence supported the original decision. We then appealed again, and have to attend the tribunal.

I really don't know what to do, or what to provide as evidence. We only have a couple of weeks left.

I've been through the medical report, but seeing as they're so tough, I'm not sure how to argue against any of it. He has back problems and hypertension. Back problems to the point of not being able to walk more than maybe 10-15 meters. He lays on the sofa most of the day because of the pain. Sitting hurts, standing hurts, walking hurts.

The medical assessor seems to think that, because he can watch TV, get himself washed and dressed, slowly walk up the stairs in his home, and stand for 2 minutes, that he is fit to work. Doing what I wonder?

It also says in the report, that just because a movement gives pain, doesn't mean the movement cant be done. It also suggests the use of a wheelchair.

Anyway, is there something I can do to help this case? I'm going to approach his doctor to try and get her opinion on his condition in writing, and show her the report, to see if she contests any of the points.

Apart from that, not sure what to do. It would be better if he represents himself? Should I contact CAB and see if they can help?

If we can't win the appeal, the only other option is to go back on JSA, but how is that going to work if he can't even make it to the job center. Can't work, can't claim benefits, too young for retirement. What else is there.

Thanks so much in advance.

Hi TT,

You will be very lucky to obtain representation so late in the day, with only 13 days left to the hearing.

Where to get advice?

Many claimants are successful without professional representation, and you could still attend to offer support.

Have a read of the following : ESA Claims Guides .

Refer to the guides with respect to which ESA50 he filled in and when the fit for work decision was made.

You will see that there are three options.

There is also an ESA Appeals Guide on the same page.

Have a read through : Preparing for a Tribunal

From our :

Appeals FAQ’s

See also :

Disability Rights UK Factsheet - Appeals and reconsiderations

&

MOJ Video of ESA Appeals Process and Tribunal

Please return if you have any further queries. We can advise further on any options available if his appeal is unsuccessful, after the event.

bro58

Thanks for the reply.

Still not sure what to do, the only last resort is to ask his GP if she would look through the medical report, and perhaps submit her own written evidence against the findings.

One other thing I forgot to add, he has another appointment with the hospital in October, in order to start some form of "pain management". I'm not sure what that means exactly, but could this be used?

I've been through the relevant guide. I can only find that we can argue against 2 descriptors:

"Mobilising unaided by another person..." which he should have scored a), 15 points, and "Standing and sitting" which he should have scored b), 9 points.

According to your guide, this should ensure he at least gets in the support group.

So, at the appeal, I should argue against the above 2 descriptors? I should ask his GP to give supporting evidence for this?

Something else. At the end of your guide, you mention having capability for work reassessed due to a change in circumstance. This is indeed the case. His condition has worsened considerably since the assessment.

Would it be wise to cancel the appeal and ask for reassessment? If they agree, will the 13 week assessment start again from the beginning -- will benefits cease once more until their conclusion?

Or we should carry on with the appeal?

Thanks again, really appreciate your advice.

TraderT wrote: I've been through the relevant guide. I can only find that we can argue against 2 descriptors:

"Mobilising unaided by another person..." which he should have scored a), 15 points, and "Standing and sitting" which he should have scored b), 9 points.

According to your guide, this should ensure he at least gets in the support group.

So, at the appeal, I should argue against the above 2 descriptors? I should ask his GP to give supporting evidence for this?

Something else. At the end of your guide, you mention having capability for work reassessed due to a change in circumstance. This is indeed the case. His condition has worsened considerably since the assessment.

Would it be wise to cancel the appeal and ask for reassessment? If they agree, will the 13 week assessment start again from the beginning -- will benefits cease once more until their conclusion?

Or we should carry on with the appeal?

Thanks again, really appreciate your advice.

Hi TT,

That is correct, if he scores 15 points for Actvity 1 (a) (i) or (ii) of the :

WRAG (LCW)Schedule 2 Descriptors

Not only does this give entry to The WRAG, it also corresponds to Activity 1. of the :

SG (LCWRA)Schedule 3 Descriptors

Therefore, it also gives entry to The SG.

You should also provide evidence with regards to any of the other descriptors that he may qualify under, such as the one that you mention, 2. (b).

The above descriptors should be referred to if the original decision was after 28/01/13. If the original fit for work decision was before then, you should refer to these descriptors :

“Old” 2011 ESA WRAG (LCW) Schedule 2 Descriptors

”Old” 2011 ESA SG (LCWRA) Schedule 3 Descriptors

Remember that with Activity 1. not only do you have to prove that he cannot walk the requisite 50 metres aided or unaided, you also have to show that he cannot self propel a manual wheelchair the same distance, unaided.

Therefore, where possible, the G.P. should reference the appropriate descriptors.

I note that you say that there has been a deterioration in their condition.

You should be aware that the Tribunal will not take any such deterioration that has occurred since the time of the fit for work decision into account.

They will be "Re-looking" at whether he should have qualified for ESA in The WRAG or SG at the time of the fit for work decision.

Therefore, all your evidence should refer to that time, and not how he has been since.

As the Tribunal hearing is only a week away, I do not really see any benefit in cancelling it now, but that's up to you.

From what you have posted, if the appeal is unsuccessful, he should be able to make a fresh claim for ESA straight away.

bro58