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ESA tribunal advice
- Sarah
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6 years 3 months ago #203625 by Sarah
ESA tribunal advice was created by Sarah
I am representing my brother at his 3rd appeal tribunal regarding his ESA next Monday (8th January).
He has quite a complex mix of health issues but the main 2 in question are:
- Erythromelalgia (EM for ease) – according to NHS website “a rare condition that causes episodes of burning pain and redness in the feet, and sometimes the hands, arms, legs, ears and face.” My brother suffers with it in his hands together with wrist pain which means he cannot lift anything of weight (a pan of cooked carrots at Sunday lunch is too much to give you an idea)
- Pelvic pain – he is not comfortable and experiences pain if sitting for prolonged periods of time and will alternate between standing and sitting as much as possible. He is most comfortable lying down.
He was receiving ESA up until Sept 2016 when he was notified he was no longer eligible (despite his condition not improving at all – at the time the diagnosis of EM had not been made but his symptoms were similar) following an ATOS assessment.
He has made 2 appeals following the Sept 2016 decision which have not been successful but have then been cancelled on errors in law. He admits himself that he struggles to his points across and that his mind goes blank when he gets the dreaded “is there anything else you would like to tell us?” so he has asked me to be his representative at the next one. He also gets concerned over inaccurate points in the paperwork. While I understand his frustration, I don’t believe they are significant to the case so I will focus more on establishing the 15 points based on the two descriptors outlined below.
He is awarded 6 points on the standing and sitting descriptor S(c) which has not changed. When he was receiving ESA he was also awarded 9 points for manual dexterity M(d) which they are no longer awarding him. “Cannot single-handedly use a suitable keyboard or mouse” – my brother’s wrist pain alone means it is difficult for him to repeatedly press keys but the main reason we believe he should be awarded the 9 points is because of his EM. He tries to keep his hands/arms elevated as much as possible as this reduces the episodes of burning pain and redness (we have a video showing his arms at his sides and you can see within a couple of minutes that he has a flare up which is then reduced when he raises his arms). There are two independent pieces of evidence, one from a doctor and the other from the ATOS assessment, that discuss how keeping his arms elevated prevents the swelling and helps my brother to manage the pain.
One of the previous tribunals suggested a touchscreen tablet is a suitable keyboard (my brother can use his touchscreen phone reasonably well as he can hold it at a height to suit him) but the subsequent decision notice from the Judge found that the tribunal “misdirected itself in determining that an ability to use a touchscreen tablet satisfied the requirement of Descriptor 5.” My main concern over this descriptor was what was classified as a suitable keyboard but the Judge’s comments suggest that a touchscreen tablet cannot be suggested.
At the same tribunal, they did award him ESA but gave him points on another descriptor relating to a new knee injury that has occurred since Sept 2016. He challenged this as he has been repeatedly told it must be based on how he was at the time of the decision. Something interesting in the commentary given by the Judge in this case said “We could have scored him more but to do so would be to no effect”. My brother has asked for an explanation regarding this and what else they would have scored him on. The answer has been that it would need to be on specific grounds. My brother has always challenged on the two descriptors I have already mentioned so I’m not sure how much more specific we can be?
Something else that I may draw on is that in one of the decision notices it says “the evidence does not suggest the use of a keyboard would necessarily cause him significant problems given he was able to drive on a day to day basis.” My brother does not drive very far at all but is able to do so with less pain than other activities due to the steering wheel being relatively higher. To compare driving to using a keyboard seems unfair to me? They also comment that “Overall the tribunal felt that…there was no reason with reasonable adjustments in the workplace that he could not undertake some form of work. For example, if he was allowed to sit and stand or move around as appropriate. He could take very short breaks when required, and would certainly be allowed within the work place to appropriately raise his hands on occasions.” My brother’s EM is not a simple condition whereby if he has a flare up, raises his hands then it always improves in 5 minutes for example. Sometimes a flare up could last for an hour or more, so I don’t feel that it would be classed as a reasonable adjustment for a workplace to a) allow him to move between sitting, standing and possibly lying down as well as b) my brother not being able to work for significant periods if he has a flare up. If it is a reasonable adjustment, then I’d like to know which workplace they have in mind!
I am no legal expert (apologies if I have incorrectly used any terminology) but am logical, rational and feel confident in making my own point. I am posting this to seek advice on strategy for the tribunal as I am not entirely sure what to expect. I know they will ask questions to establish a typical day for my brother but will I be able to guide the discussion to make sure that we cover the two descriptors within the hour? And can I give personal opinion as I see how his medical conditions affect him? I don’t want to dwell too much on the previous tribunals but I feel it’s important to address the issues around driving and reasonable adjustment or we may find ourselves in the same situation if this tribunal feels the same.
My brother does want to work, but feels much more supported through receiving ESA than JSA. Through the permitted work on ESA, he likes the idea of being able to try different types of work without fear of sanction (while on JSA, he tried a warehouse job that wasn’t suitable so he didn’t complete a shift – the next day his job centre advisor threatened that he would not receive JSA if he did that again!). He has worked as a farmer for most of his life (receiving an injury in the workplace resulted in the eventual diagnosis of EM) and is a hardworking individual that just wants to be appropriately supported back into suitable employment.
Apologies if I’ve missed anything glaringly obvious that you would need to know but I greatly appreciate any help or advice on offer.
Sarah
He has quite a complex mix of health issues but the main 2 in question are:
- Erythromelalgia (EM for ease) – according to NHS website “a rare condition that causes episodes of burning pain and redness in the feet, and sometimes the hands, arms, legs, ears and face.” My brother suffers with it in his hands together with wrist pain which means he cannot lift anything of weight (a pan of cooked carrots at Sunday lunch is too much to give you an idea)
- Pelvic pain – he is not comfortable and experiences pain if sitting for prolonged periods of time and will alternate between standing and sitting as much as possible. He is most comfortable lying down.
He was receiving ESA up until Sept 2016 when he was notified he was no longer eligible (despite his condition not improving at all – at the time the diagnosis of EM had not been made but his symptoms were similar) following an ATOS assessment.
He has made 2 appeals following the Sept 2016 decision which have not been successful but have then been cancelled on errors in law. He admits himself that he struggles to his points across and that his mind goes blank when he gets the dreaded “is there anything else you would like to tell us?” so he has asked me to be his representative at the next one. He also gets concerned over inaccurate points in the paperwork. While I understand his frustration, I don’t believe they are significant to the case so I will focus more on establishing the 15 points based on the two descriptors outlined below.
He is awarded 6 points on the standing and sitting descriptor S(c) which has not changed. When he was receiving ESA he was also awarded 9 points for manual dexterity M(d) which they are no longer awarding him. “Cannot single-handedly use a suitable keyboard or mouse” – my brother’s wrist pain alone means it is difficult for him to repeatedly press keys but the main reason we believe he should be awarded the 9 points is because of his EM. He tries to keep his hands/arms elevated as much as possible as this reduces the episodes of burning pain and redness (we have a video showing his arms at his sides and you can see within a couple of minutes that he has a flare up which is then reduced when he raises his arms). There are two independent pieces of evidence, one from a doctor and the other from the ATOS assessment, that discuss how keeping his arms elevated prevents the swelling and helps my brother to manage the pain.
One of the previous tribunals suggested a touchscreen tablet is a suitable keyboard (my brother can use his touchscreen phone reasonably well as he can hold it at a height to suit him) but the subsequent decision notice from the Judge found that the tribunal “misdirected itself in determining that an ability to use a touchscreen tablet satisfied the requirement of Descriptor 5.” My main concern over this descriptor was what was classified as a suitable keyboard but the Judge’s comments suggest that a touchscreen tablet cannot be suggested.
At the same tribunal, they did award him ESA but gave him points on another descriptor relating to a new knee injury that has occurred since Sept 2016. He challenged this as he has been repeatedly told it must be based on how he was at the time of the decision. Something interesting in the commentary given by the Judge in this case said “We could have scored him more but to do so would be to no effect”. My brother has asked for an explanation regarding this and what else they would have scored him on. The answer has been that it would need to be on specific grounds. My brother has always challenged on the two descriptors I have already mentioned so I’m not sure how much more specific we can be?
Something else that I may draw on is that in one of the decision notices it says “the evidence does not suggest the use of a keyboard would necessarily cause him significant problems given he was able to drive on a day to day basis.” My brother does not drive very far at all but is able to do so with less pain than other activities due to the steering wheel being relatively higher. To compare driving to using a keyboard seems unfair to me? They also comment that “Overall the tribunal felt that…there was no reason with reasonable adjustments in the workplace that he could not undertake some form of work. For example, if he was allowed to sit and stand or move around as appropriate. He could take very short breaks when required, and would certainly be allowed within the work place to appropriately raise his hands on occasions.” My brother’s EM is not a simple condition whereby if he has a flare up, raises his hands then it always improves in 5 minutes for example. Sometimes a flare up could last for an hour or more, so I don’t feel that it would be classed as a reasonable adjustment for a workplace to a) allow him to move between sitting, standing and possibly lying down as well as b) my brother not being able to work for significant periods if he has a flare up. If it is a reasonable adjustment, then I’d like to know which workplace they have in mind!
I am no legal expert (apologies if I have incorrectly used any terminology) but am logical, rational and feel confident in making my own point. I am posting this to seek advice on strategy for the tribunal as I am not entirely sure what to expect. I know they will ask questions to establish a typical day for my brother but will I be able to guide the discussion to make sure that we cover the two descriptors within the hour? And can I give personal opinion as I see how his medical conditions affect him? I don’t want to dwell too much on the previous tribunals but I feel it’s important to address the issues around driving and reasonable adjustment or we may find ourselves in the same situation if this tribunal feels the same.
My brother does want to work, but feels much more supported through receiving ESA than JSA. Through the permitted work on ESA, he likes the idea of being able to try different types of work without fear of sanction (while on JSA, he tried a warehouse job that wasn’t suitable so he didn’t complete a shift – the next day his job centre advisor threatened that he would not receive JSA if he did that again!). He has worked as a farmer for most of his life (receiving an injury in the workplace resulted in the eventual diagnosis of EM) and is a hardworking individual that just wants to be appropriately supported back into suitable employment.
Apologies if I’ve missed anything glaringly obvious that you would need to know but I greatly appreciate any help or advice on offer.
Sarah
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- Gordon
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6 years 3 months ago #203633 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic ESA tribunal advice
Sarah
Welcome to the forum, you might want to have a look at the following FAQ which explain where everything is
Welcome to Benefits and Work
The first thing to understand is whilst your brother may have a range of problems resulting from his conditions, only those limitations that directly relate to the ESA activities will be consdered at the Tribunal. SO his EM may cause him problems with washing and dressing but these problems will not score him points although it is worth making the panel aware of problems like this as it gives a broader picture of his problems and supports his having problems in the areas that will score him points.
The best place to look for detailed information is our ESA Claim guides on the following links, which explain the legal tests that he is being assessed against in some detail.
www.benefitsandwork.co.uk/help-for-claimants/esa1
You should not need to worry about matters like the use of a non-mechanical keyboard if this was covered in a Upper Tier Tribunal Decision, as the new panel will have received a directive not to consider these matter at the new hearing,
Any capability to drive is a reasonable issue to consider in regards to what he can do with his hands as it requires grip and some level of upper bod strength, you will need to argue that this and pressing keys are very different activities and being able to drive, however restricted this might be does not indicate capability with his hands.
Understand, as you mention no problems that he would have with interacting with the panel, that the vast majority of questions will be directed at your brother, the Judge may allow you to interject and to add comment, but as you are not going to be considered as your brother's Representative (rather his representative), as you have no formal training, they may restrict what you might say, although you should be given a brief period at the end of the hearing to add any comments that you might have. It may help if you prepare a bulleted list of the points you want to raise.
Was a submission made for this or any of the previous hearings? It's now to late to provide one but it would be worth your familiarising yourself with one if it is available.
If you have more questions then please reply to this post and we will do our best to help.
Gordon
Welcome to the forum, you might want to have a look at the following FAQ which explain where everything is
Welcome to Benefits and Work
The first thing to understand is whilst your brother may have a range of problems resulting from his conditions, only those limitations that directly relate to the ESA activities will be consdered at the Tribunal. SO his EM may cause him problems with washing and dressing but these problems will not score him points although it is worth making the panel aware of problems like this as it gives a broader picture of his problems and supports his having problems in the areas that will score him points.
The best place to look for detailed information is our ESA Claim guides on the following links, which explain the legal tests that he is being assessed against in some detail.
www.benefitsandwork.co.uk/help-for-claimants/esa1
You should not need to worry about matters like the use of a non-mechanical keyboard if this was covered in a Upper Tier Tribunal Decision, as the new panel will have received a directive not to consider these matter at the new hearing,
Any capability to drive is a reasonable issue to consider in regards to what he can do with his hands as it requires grip and some level of upper bod strength, you will need to argue that this and pressing keys are very different activities and being able to drive, however restricted this might be does not indicate capability with his hands.
Understand, as you mention no problems that he would have with interacting with the panel, that the vast majority of questions will be directed at your brother, the Judge may allow you to interject and to add comment, but as you are not going to be considered as your brother's Representative (rather his representative), as you have no formal training, they may restrict what you might say, although you should be given a brief period at the end of the hearing to add any comments that you might have. It may help if you prepare a bulleted list of the points you want to raise.
Was a submission made for this or any of the previous hearings? It's now to late to provide one but it would be worth your familiarising yourself with one if it is available.
If you have more questions then please reply to this post and we will do our best to help.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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