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ESA descriptors and B&W guide

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11 years 8 months ago - 11 years 8 months ago #89857 by H2o
ESA descriptors and B&W guide was created by H2o
I have been reading through the B&W ESA guide and some of the ESA handbook, they both make reference to limitations based on pain, fatigue, repeatability, safety, and the terms, most of the time, and when called upon to do so. There is also a paragraph where "reasonable" is roughly equated to "normal", ie comparing the claimant to a "normal" level of ability.

Under the IB Commissioner decisions, nearly all these terms had a legal basis based on rulings, but on the B&W download page it says that this is now only guidance. Do the IB decisions not count as a legal precedent even under the new ESA system, or have they not been re-confirmed through current rulings?

The 2012 handbook also highlights the need for the HCP to read any information supplied by the claimant at the assessment, but this was not the case when a friend of mine had here assessment.

I was wondering if it would be good to make a short guide to the legal requirements for the descriptors, ie that they refer to the task being carried out when called upon to do so, repeatedly and safely, and without undue pain or fatigue, or in a "normal" manner.

This could be sent in with the claim form and handed to the HCP before examination, hopefully before it would be needed at a tribunal.

To summarise, are these limitations made clear under current law?
Would it be useful to make these rulings clear to the DM and HCP during the claim process?
I have the old rulings somewhere if you need them.
Last edit: 11 years 8 months ago by slugsta.

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11 years 8 months ago #89862 by slugsta
Replied by slugsta on topic Re:ESA descriptors and B&W guide
If the guides state this these terms are now only guidelines, then I am confident that this is the case.

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

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  • Jim Allison BSc, Inst LE, MBIM; MA (Consumer Protection & Social Welfare Law)
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11 years 8 months ago #89864 by Jim Allison BSc, Inst LE, MBIM; MA (Consumer Protection & Social Welfare Law)
Replied by Jim Allison BSc, Inst LE, MBIM; MA (Consumer Protection & Social Welfare Law) on topic Re:ESA descriptors and B&W guide
Guidelines are precisely that, they are not an authoritative statement of the law.

PLEASE READ THE SPOTLIGHTS AREA OF THE FORUM REGULARLY, OTHERWISE YOU MAY MISS OUT ON IMPORTANT INFORMATION. Nothing on this board constitutes legal advice - always consult a professional about specific problems

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11 years 8 months ago - 11 years 8 months ago #89868 by DRAGON2009
Replied by DRAGON2009 on topic Re:ESA descriptors and B&W guide
I suggest that the reason the guide describes the earlier IB decisions as now only guidance, is because they were made in the context of the IB, not the ESA legislation. They are not binding, but may be persuasive
and certainly worth citing
Obviously the descriptors are measduring parameters of function and it should always be accepted that being able to do something for 5 mins a day ( as an example) would not mean that you should pass the descriptor
As time progresses ESA case decisions from the upper tribunal will cover these features (hopefully !)
Last edit: 11 years 8 months ago by Gordon.

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11 years 8 months ago - 11 years 8 months ago #89870 by DRAGON2009
Replied by DRAGON2009 on topic Re:ESA descriptors and B&W guide
There is also an excellent guidebook written by Judy Stenger , available from MIND and would be an excellent companion source to Steves guides available to members here
Last edit: 11 years 8 months ago by Gordon.

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