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Variable conditions and ESA

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13 years 6 months ago #30114 by mikmikmik
Variable conditions and ESA was created by mikmikmik
I dug up some info from a house of lords paper (link below)which related to assessment of fluctuating conditions such as ME (which i suffer from ) Ms and many others.
The document states:
A7. Fluctuations, irrespective of their frequency and duration, should be reflected in the advice provided to DWP decision maker. Health care professionals carrying out the assessments are trained not to give a snapshot view based only on the day of assessment but instead to enquire about variability, both day to day and in the long term. Someone who is unable to complete a task reliably and repeatedly is considered to be unable to do that task at all.

In particular the last sentance. I would have thought this would mean it would be irrelevant if you could pick up a pen for instance if you couldn't do it repeatedly.
In my case i might be able to stand for a few mins as a one off, but not repeatedly.

What do other members think about this?



www.publications.parliament.uk/pa/ld2010...ct/ldmerit/7/706.htm

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13 years 6 months ago #30118 by choogle
Replied by choogle on topic Re:Variable conditions and ESA
It seems like the kind of statement that you would think would give comfort to many who, optimistically, would like to think that their claims will be fairly assessed with due consideration given to all available information.

However, it's a bit like a 'mission statement' about effective repairs from a plumbing firm who consistently fail to fix water damage (sorry for this analogy, ongoing household repairs!)

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13 years 6 months ago #30119 by Derek4
Replied by Derek4 on topic Re:Variable conditions and ESA
Hi Mik Sellers

Upper Tribunal judgements, which are legally binding on First-Tier Tribunals have already established that the PCA and WCA have to take into consideration 'reasonable regularity'.

If you can manage a task, but you cannot repeat it within a 'reasonable' amount of time, you can argue that you cannot complete that task for the purpose of the PCA or WCA. What should be considered as a reasonable amount of time is up to a tribunal to decide.

You can find more information on this Disability Alliance page, Reasonable Regularity

Derek

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13 years 6 months ago #30124 by Gordon
Replied by Gordon on topic Re:Variable conditions and ESA
This is currently my favourite :)

The following are additional references that can be looked at.

The Employment and Support Allowance Regulations 2008.
PART 5 LIMITED CAPABILITY FOR WORK.
27. Claimant to be treated as having limited capability for work throughout a day.

www.legislation.gov.uk/uksi/2008/794/regulation/27/made
Employment and Support Allowance ESA214 – The Work Capability Assessment
Page 13 - The medical assessment

www.direct.gov.uk/prod_consum_dg/groups/...lasset/dg_177366.pdf
Decision Makers' Guide
Volume 8 – Employment and Support Allowance
Chapter 42 - Limited Capability for Work and Limited Capability for Work-Related Activity.
Paragraph 42175

www.dwp.gov.uk/docs/dmgch42.pdf

There is also one in the ATOS training manual for health professionals, but there is no public link to this document although there is a copy on B&W.

Finally, you will also find two paragraphs, one on variability and the second on reasonable regularity, in your appeal bundle, should you have one. They are in the part labelled "The Secretary of State’s Response; Section 5", should be near the front, mine were items 10 & 11.

Hope this helps

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

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13 years 6 months ago #30126 by Derek4
Replied by Derek4 on topic Re:Variable conditions and ESA
Hi Steve

The Secretary of State's Response is an individual response to your particular case, the information it contains will not be the same for everybody.

The Employment and Support Allowance Regulations 2008 (which you provided a link for) and case law is legally binding. DWP publications explain the DWP's interpretation (or misinterpretation) of the law. It is useful to gain an understanding of what they are thinking but it is not legally binding (sometimes complete nonsense) and cannot be relied upon.

Derek

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13 years 6 months ago #30173 by Gordon
Replied by Gordon on topic Re:Variable conditions and ESA
DepressedDerek

You're perfectly right, and of course, ultimately it is down to the ATOS "professional" correctlky applying the rules when they carry out the WCA, which we all know has been variable to date.

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

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