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Advice needed urgently please

  • Hope
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11 years 4 months ago - 11 years 4 months ago #95268 by Hope
Advice needed urgently please was created by Hope
Will keep this bit short as I have lots to cover and hardly any time to do it, thanks to late arrival of my entitlement letter! I live in Spain was on Incapacity benefit, completed ESA50, was sent for an assessment here in Spain in June, no medical, no computor, he just asked me questions and wrote answers etc (he spoke english well) when I questioned benefit office today, they said that he will have had my ESA50 form and his own guidance form and that a medical wasn't necessary to group me (your site says differently) I said surely we all have to be assessed in the same manner to correctly group us and his reply was, “ well you live in Spain, you can not compare that to the UK!!! (anyway don't digress)

I received a letter saying I am entitled to contribution based (WCAG) However, I think I should be in support group. When I was having the assessment I remember that we debated a lot about the distance in mobile/walking question and also I was not happy that he kept asking about me actually stopping and I kept saying I had pain with every step but not necessarily stopped because of it ( think this is ok according to re: 1a ii descriptor.

I have since realised that at the assessment and also probably on my form, I may have mistakenly confused meters as equalling feet and not equalling more a yard (massive difference but I'm from old school) I am going to appeal but do not know if I should actually mention my possible 'meter' error and get my GP to write a letter that fits with how the question is worded in the form. I am asking GP for this letter regardless but just not sure if I should explain my possible error to him or/and on the appeal form. In italics below is the letter I was going to ask him to write, he speaks a little English but he would never be able to word the letter correctly, if I didn't spell it out for him, making it a complete waste of time.

Due to permanent upper and lower limb and joint disabilities (my name) can not repeatedly moblise (or am I better just simply saying can not mobilise or walk? 50 meters in a reasonable and normally accepted (is that good extra wording or not?) timeframe because of significant pain and discomfort.

Also because of these disabilities she would cause a substancial risk to her own physical and/or mental health, or that of other people in a work enviroment (I presume it is necessary to actually say, in a work enviroment?) I consider this to be a true and accurate statement (or is the word account better?) as of prior to any ESA entitlement or award.


Can you please tell me if all that is ok and have I missed anything off? would appreciate it, if you could also answer any questions including those in brackets then I am set to go hopefully (seeing doctor tomorrow, went today but was a stand in) Am I better asking for two separate letters for the the descriptor and exceptional circumstance or can they be written as one, like I have done here.

The exceptional circumstance i.e. risk to self and others, I do not remember this being in my ASA50 form? and if it was, I could have answered that very differently because of not really understanding what it meant, still not too sure. Do I have to write in my appeal letter, why I am a risk, to back up the doctors letter (if I get one that is) or just put his letter in. I am taking it that 'a risk' can mean injurying myself/others or making my disabilities worse, am I correct with that?

Finally, phew! I am quite nervous after reading the statistics regarding paper appeals with nobody attending tribunal. Obviously it is impossible for me to attend and I don't suppose I can have a representative (not family member) in the UK to go on my behalf, if I live in Spain can I?
Last edit: 11 years 4 months ago by Gordon.

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11 years 4 months ago #95275 by Gordon
Replied by Gordon on topic Re:Advice needed urgently please
Hope

If you have confused feet and metres then you should certainly mention this in regard to your appeal.

Feet to metres is about 15m, yards to metres is just over 45m.

You need to be aware, if you are not already, that this is not a walking test, but a mobilising test, which includes your ability to propel a wheelchair over an equivalent distance, it is irrelevant whether you use or even own a wheelchair. However, the usage must be reasonable, so if you have upper body issues, or live in premises that would not allow the usage of a wheelchair, this may mean that it is discounted.

Whilst I can't tell you not to use this letter, asking your GP to sign a letter that you have written may not be to your advantage, as it is possible for this to be discounted as not being your GPs own words.

You would be better served by presenting them with document that offers them a choice of distances over which you can mobilise, and for them to choose theo one that they believe is reasonable for you and to complete a short statement as to why they believe this is the case.

To qualify under the Exceptional Circumstances, you need to state why this is the case, and provide compelling evidence to support your case. The EC's are only considered after a claimant has failed to meet any other descriptor for the Support Group, so you cannot rely on evidence that relates to any of the normal SG descriptors as this will already have been discounted.

The important thing is to lodge an appeal, after this you can submit further testimony and evidence to the Reconsideration and/or appeal at a somewhat later date.

You should have a look at the following FAQs before proceeding

Is there any risk to challenging a decision?

How long do I have to appeal?

How to submit an appeal

Qualifying for the Support Group

Disability Rights UK Factsheet - Appeals and reconsiderations

12 Month Limit for ESA(CB)

If you have further questions, please reply to this thread.

Gordon

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

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  • Hope
  • Topic Author
11 years 4 months ago - 11 years 4 months ago #95291 by Hope
Replied by Hope on topic Re:Advice needed urgently please
Thanks Gordon I was going to give that letter to doctor for him to copy in his own writing, only because of his english spelling and wording problems, anyway that is least of my problems.

I have read every one of those links you have given me but they did not answer the specific questions that I have asked you. So can you please tell me what being a 'risk' actually means? does it refer to the things I mentioned in my last post, worsening my symptoms etc? AND is this exception actually written in the form? You say "The EC's are only considered after a claimant has failed to meet any other descriptor for the Support Group"
So therefore is it not better that I cover myself in advance with this letter, should I happen to fail the other descriptors?
Is it better that I ask for two letters or is one ok?

and can you please answer all the questions I have asked in brackets regarding the whether I should omit or change those words?

I need all this information by the morning that is why I asked them all in one post, so I did not have to waste your time keep asking different things but I still do not feel I have any of the answers to what I asked yet.Please can you look at my question marks and answer each one. Not saying that nastily, just shaking with exhaustion now.
Once I have all the answers to everything I have asked, I can finally try and cut off after two whole days of reading and making notes. I really need to switch off for my healths sake but I can't until I am fully satisfied on all my post queries. Many thanks, I do appreciate you are busy with others but once I have my answers, I will shut up promise :-)
Last edit: 11 years 4 months ago by Gordon.

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11 years 4 months ago #95298 by Gordon
Replied by Gordon on topic Re:Advice needed urgently please
Hope

There is no specific defintion of what risk means in the context of the EC's. Clearly the standard dictionary defintion can be used in part, but there is no clear indication of what the scale or severity must be.

Your statement alone is unlikely to suffice, so you will need to provide evidence to support your contention, my point was, that as the individual descriptors will have already been considered, any such evidence must directly address the question of that risk. As a trivial example, evidence saying that you meet the EC's because you are in pain when mobilising, is unlikely to be sufficient, if it was, then you would likely have been placed in the SG on the mobilising descriptor.

With regard your letter, we can only give general advice, I am afraid I cannot tell you what to write in your letter.

That said, as you are looking to appeal for the Support Group, the issue you of you working is not in question as you have already been found as Unfit for Work.

To be placed in the Support Group, you need to meet one of the associated descriptors, or the EC's on the basis the Work Related Activity would be dangerous to your health or that of others.

Gordon

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  • Jim Allison BSc, Inst LE, MBIM; MA (Consumer Protection & Social Welfare Law)
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11 years 4 months ago - 11 years 4 months ago #95311 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:Advice needed urgently please


Will keep this bit short as I have lots to cover and hardly any time to do it, thanks to late arrival of my entitlement letter! I live in Spain was on Incapacity benefit, completed ESA50, was sent for an assessment here in Spain in June, no medical, no computor, he just asked me questions and wrote answers etc (he spoke english well) when I questioned benefit office today, they said that he will have had my ESA50 form and his own guidance form and that a medical wasn't necessary to group me (your site says differently) I said surely we all have to be assessed in the same manner to correctly group us and his reply was, “ well you live in Spain, you can not compare that to the UK!!! (anyway don't digress)




We cannot really offer advice on Benefits abroad, as we are not a welfare rights service, but see this link :
HERE

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
Last edit: 11 years 4 months ago by Crazydiamond.

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