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Assumptions
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6 years 4 months ago #202581 by Gordy
Assumptions was created by Gordy
Hello
My wife is appealing the decision to take her off ESA SG having gained no points in descriptor 1 and the DWP deciding she can use a wheel chair to get to work.
They have stated on the appeal document they sent that because I can drive and take her to appointments that I should be able to give her a lift to work!.Now whilst I am retired what gives them the right to say I must take my wife to work,how do they know what my commitments are.Are they allowed to state this?
Her main complaint is that they say she can use a wheel chair, this appears to be based on the fact that she never said on her ESA 50 that she couldn't use one . If you have never had cause to use a wheelchair then how do you know how it will affect you.However it was stated on the ESA50 that she has Degenerative Cervical Spine Spondylosis.
My argument is that the HCP who was a Physiotherapist should know that repetitive movements of the arm whilst using a wheelchair would cause more pain and damage to the cervical spine area,I have submitted evidence to the tribunal that this would be the case.
Its like having your arm amputated but not putting it on the ESA50 then being told you can use a wheelchair because you didn't specify how it would affect you.
Thankyou in advance.
My wife is appealing the decision to take her off ESA SG having gained no points in descriptor 1 and the DWP deciding she can use a wheel chair to get to work.
They have stated on the appeal document they sent that because I can drive and take her to appointments that I should be able to give her a lift to work!.Now whilst I am retired what gives them the right to say I must take my wife to work,how do they know what my commitments are.Are they allowed to state this?
Her main complaint is that they say she can use a wheel chair, this appears to be based on the fact that she never said on her ESA 50 that she couldn't use one . If you have never had cause to use a wheelchair then how do you know how it will affect you.However it was stated on the ESA50 that she has Degenerative Cervical Spine Spondylosis.
My argument is that the HCP who was a Physiotherapist should know that repetitive movements of the arm whilst using a wheelchair would cause more pain and damage to the cervical spine area,I have submitted evidence to the tribunal that this would be the case.
Its like having your arm amputated but not putting it on the ESA50 then being told you can use a wheelchair because you didn't specify how it would affect you.
Thankyou in advance.
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6 years 4 months ago #202589 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Assumptions
Gordy
I've seen this argument before and it s a false one, the legal definition of the Descriptor makes no reference to the claimant travelling to work and the test is of the claimants ability to mobilise a specific distance themselves, help from you or anybody else is not included.
ESA is not a walking test, it is a Mobility test! In addition to her walking it considers her ability to self-propel a manual wheelchair over the same distances, she do not need to be using a wheelchair or even to own one for it to be considered. SO even if she can show your walking is restricted, unless she can also show that she cannot self-propel the wheelchair she will still not score points.
I understand your thoughts that she should not need to show that she cannot self-propel a wheelchair if she can't, but you need to understand that those assessing her are not required to use their brains when making a Decision on an award and usually don't. You need to spell out each and every limitation that your wife has!
The first stage to challenging a Decision is for you to request a Mandatory Reconsideration, this needs to be done in writing to the DWP, within one month of the Decision, to the office that dealt with her claim, have a look at our ESA MR & Appeal guide for details of the process, the ESA area also has template letters that you can use to make the request with.
www.benefitsandwork.co.uk/help-for-claimants/esa1
You should contact the DWP for a copy of the assessment report if you have not already done so, it's an ESA85, I would phone them but again follow up the request in writing. Once you have the assessment report you will have a better understanding of how the DWP Decision Maker has come to their conclusions and will then be able to argue against them.
Your primary task is to show that she meets the criteria, there are many reasons she may have failed, you need to address each of these but don't get bogged down in criticising the assessment report unless you can clearly show that it is incorrect, it is a lot easier to argue the facts of the situation;
"the assessor recorded that she walked 50m, she did but they have failed to document that I had to stop every 10m for a rest due to breathlessness"
than their opinions
"based on my observations of the claimant walking I believe that they can reliably walk more than 200m.
Gordon
I've seen this argument before and it s a false one, the legal definition of the Descriptor makes no reference to the claimant travelling to work and the test is of the claimants ability to mobilise a specific distance themselves, help from you or anybody else is not included.
ESA is not a walking test, it is a Mobility test! In addition to her walking it considers her ability to self-propel a manual wheelchair over the same distances, she do not need to be using a wheelchair or even to own one for it to be considered. SO even if she can show your walking is restricted, unless she can also show that she cannot self-propel the wheelchair she will still not score points.
I understand your thoughts that she should not need to show that she cannot self-propel a wheelchair if she can't, but you need to understand that those assessing her are not required to use their brains when making a Decision on an award and usually don't. You need to spell out each and every limitation that your wife has!
The first stage to challenging a Decision is for you to request a Mandatory Reconsideration, this needs to be done in writing to the DWP, within one month of the Decision, to the office that dealt with her claim, have a look at our ESA MR & Appeal guide for details of the process, the ESA area also has template letters that you can use to make the request with.
www.benefitsandwork.co.uk/help-for-claimants/esa1
You should contact the DWP for a copy of the assessment report if you have not already done so, it's an ESA85, I would phone them but again follow up the request in writing. Once you have the assessment report you will have a better understanding of how the DWP Decision Maker has come to their conclusions and will then be able to argue against them.
Your primary task is to show that she meets the criteria, there are many reasons she may have failed, you need to address each of these but don't get bogged down in criticising the assessment report unless you can clearly show that it is incorrect, it is a lot easier to argue the facts of the situation;
"the assessor recorded that she walked 50m, she did but they have failed to document that I had to stop every 10m for a rest due to breathlessness"
than their opinions
"based on my observations of the claimant walking I believe that they can reliably walk more than 200m.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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6 years 4 months ago #202623 by Gordy
Replied by Gordy on topic Assumptions
Just awaiting a date for her tribunal.
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