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Can you use a PIP case ruling for an ESA appeal

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6 years 5 months ago #200101 by 3175379
In 2011 I scored 9 points for manual dexterity and since them my overall condition has worsened, however, in 2017 I scored 0 points for the same descriptor. Over the years I have had to adapt to my worsening conditions by incorporating grabbers, a one-cup kettle, pre-cooked pre-cut food items, liquids placed into pump bottles as I can’t squeeze bottles, tap handle turners etc. Throughout the ESA85 report the medical examiner acknowledged that I had difficulty gripping, muscle wasting, carpal tunnel syndrome and arthritis etc. in both hands/wrists. Then under the Personal Summary Statement he states “His hand difficulty and upper limb difficulty is acknowledged but he seems to manage function with adaptions that make it seem that significant functional restriction in manual dexterity reach or picking things is unlikely…”.
I submitted a Mandatory Reconsideration and have just received the outcome with the decision staying the same. In it the Decision Maker wrote
“The Health Care Professional at the assessment reported your hand difficulty and upper limb difficulty is acknowledged but he seems to manage function with adaptions that make it seem that significant functional restriction in manual dexterity.”
“Having considered all available evidence, I place greater weight on the evidence of the Health Care Professional because the Health Care Professional is a specialist in disability analysis, focussing on the affects of a condition not the condition itself.”
I personally do not believe that this is correct as I feel that the standard has been lowered to include my adaptations.
I intend to appeal and I was wondering as to if I could use a Secretary of State ruling in a PIP case as a precedent for an ESA case? Ruling [2016] AACR 10 covers the assessment of the dressing and undressing activity and ruled that “A claimant’s limitations cannot be used to raise the standard by which their ability is judged. On the other hand, the limitations on what clothing a claimant can cope with cannot be used to lower that standard…..There must be a balance struck that prevents claimants generating their own entitlement while at the same time not allowing their own disability to be used against them. The solution lies in concentrating on the functions that are involved in dressing and undressing and on the claimant’s condition that is said to limit their ability to perform those functions.”
Any advice would be greatly appreciated
GL

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6 years 5 months ago #200125 by Gordon
G

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I doubt very much that your argument of the applicability of the PIP Case Law would be accepted in regard the ESA Descriptors, the activities are just too dissimilar.

Have a look at the following site that has ESA Case Law

wcainfo.net/

Gordon

Nothing on this board constitutes legal advice - always consult a professional about specific problems

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6 years 5 months ago #200154 by 3175379
Thank you for a quick response.
Sorry, I should have made myself a little clearer.
The mentioned case refers to a claimant who has to wear baggy clothes with no buttons, zips etc. as they can’t handle them and wouldn’t be able to dress/undress themselves otherwise. They were initially refused any points for this activity because it was deemed that they could dress/undress themselves – which in theory they could. On appeal The Secretary of State then decided that the claimant should be awarded points because they couldn’t dress themselves in what would be considered normal for a particular occasion and not what their disabilities dictated that they could physically wear.
That is more the point that I am trying to make. If I didn’t have the use of grabbers, or use push tops bottles etc. then I would have almost no use of my hands, yet I feel that the Medical Examiner has decided that because I have used adaptions that I have near normal use of my hands. Where he states “His hand difficulty and upper limb difficulty is acknowledged but he seems to manage function with adaptions that make it seem that significant functional restriction in manual dexterity reach or picking things is unlikely…”.

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6 years 5 months ago #200159 by Gordon
GL

I understand the point you are making :) and if you feel the PIP Case Law will help then argue it, but don't rely on it. Case Law is not that transferrable, this UTT Decision relates to Dressing and Undressing which ESA does not consider, also and more importantly, in general PIP awards points for the use of aids, whereas ESA actually removes them.

Gordon

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