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ESA: Possible appeal on the grounds of exceptional

  • Donald
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11 years 3 months ago - 11 years 3 months ago #96427 by Donald
I suffer from M.E. and am considering appealing an ESA decision to place me in the Work Related Activity Group (WRAG) as opposed to the Support Group. The grounds for this appeal would be twofold. The first of these is as follows:

Due to exceptional circumstances (s35), participating in the WRAG would pose a substantial risk to my health and the health of others. To expand upon this, I would state the following:

Although I am capable of attending work-focused interviews and other work-related activities (WRA) that last no more than several hours, one day per week, without substantial risk to my health, I feel that, on the balance of probability, I would eventually be required to participate in activities that would present a substantial risk to my health. The WRAs to which I refer are work training, work programmes, work trials, work placements, voluntary work, permitted work, preparation for self-employment and basic skills programmes that reflect the hours worked by most part or full-time workers (i.e., 15.5 hours and 39 hours, respectively).

I repeat and stress that because I am capable of attending a work focussed interview and participating in WRAs that last between one and several hours, this should not mean that I do not have limited capability for work-related activity. Because, in this regard, it is crucial to appreciate that the relevant test is of “limited” capability and not of “no” capability to do work-related activity.

Does anyone know of any Tribunal decisions that would substantiate this argument?
Last edit: 11 years 3 months ago by Gordon.

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11 years 3 months ago #96429 by Gordon
Donald

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

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11 years 3 months ago #96431 by Gordon
Donald

As far as I am aware there is no Case Law in this area that would be relevant.

Your major problem is that Work Related Activity is not defined in detail in the legislation or any supporting documents, also WRA is supposed to take into account any limitations that result from a claimants condition(s) so there is no "fixed" amount of WRA that a claimant has to do.

In a nutshell, the Regulation 35 test is not whether you can do some WRA, but rather that you cannot do any WRA. If you can't show that your ME precludes any WRA, and the burden of proof and requirement to produce evidence, lies wholely with you then you are unlikely to be succesful.

Gordon

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