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ESA: Possible appeal on the grounds of inability t
- Donald
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11 years 4 months ago - 11 years 4 months ago #96428 by Donald
ESA: Possible appeal on the grounds of inability t was created by Donald
Following on from a previous post.
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 second of these is as follows:
The second point that I would make is that in the sixteen activities which are considered to determine whether a claimant has limited capability for work-related activity, the approved healthcare professional advises that I do not match one relevant descriptor. This simply does not reflect the nature of my M.E. condition in that although when I have been rested for several days, I can performs tasks, initially, but cannot do so with reasonable regularity.
Furthermore, the answers that I have given to questions regarding the above descriptors have focused on how I would cope with tasks in a workplace context. The healthcare professional appears not to have taken this into account. Obviously, in the context of a capability for work assessment, to do this is profoundly unfair as it will probably result in an unrealistic assessment of the claimant’s capability of being able to work.
Does anyone know of any Tribunal decisions that would substantiate the argument as set out in the previous paragraph?
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 second of these is as follows:
The second point that I would make is that in the sixteen activities which are considered to determine whether a claimant has limited capability for work-related activity, the approved healthcare professional advises that I do not match one relevant descriptor. This simply does not reflect the nature of my M.E. condition in that although when I have been rested for several days, I can performs tasks, initially, but cannot do so with reasonable regularity.
Furthermore, the answers that I have given to questions regarding the above descriptors have focused on how I would cope with tasks in a workplace context. The healthcare professional appears not to have taken this into account. Obviously, in the context of a capability for work assessment, to do this is profoundly unfair as it will probably result in an unrealistic assessment of the claimant’s capability of being able to work.
Does anyone know of any Tribunal decisions that would substantiate the argument as set out in the previous paragraph?
Last edit: 11 years 4 months ago by Gordon.
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11 years 4 months ago #96437 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic ESA: Possible appeal on the grounds of inability t
Donald
Whilst guidance used by ATOS often refers to the applicability of the ESA in a workplace environment, this requirement is not defined in any of the ESA descriptors by which ESA is awarded, so whilst you might argue that this should be required and under these circumstances you would meet the Support Group desriptors, this may not be accepted by an Tribunal panel as being relevant.
So as an example to be placed in the Support Group for Mobilising, the test is
As you can see there is no reference to a workplace environment.
Further, the descriptors are reviewed on an individual basis, so you cannot argue, that work consists of multiple descriptors, for example, walking to the bus stop, standing while you wait for a bus, sitting on the journey, walking to your place of work...
The only way to get into the SG, based on the descriptors is to show that you meet one or more of the criteria. Have a look at th following FAQs
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)
Do I have to attend WFIs while I appeal?
Gordon
Whilst guidance used by ATOS often refers to the applicability of the ESA in a workplace environment, this requirement is not defined in any of the ESA descriptors by which ESA is awarded, so whilst you might argue that this should be required and under these circumstances you would meet the Support Group desriptors, this may not be accepted by an Tribunal panel as being relevant.
So as an example to be placed in the Support Group for Mobilising, the test is
(i) mobilise more than 50 meters on level ground without stopping in order to avoid significant
discomfort or exhaustion
or
(ii) repeatedly mobilise 50 meters within a reasonable timescale because of significant
discomfort or exhaustion
As you can see there is no reference to a workplace environment.
Further, the descriptors are reviewed on an individual basis, so you cannot argue, that work consists of multiple descriptors, for example, walking to the bus stop, standing while you wait for a bus, sitting on the journey, walking to your place of work...
The only way to get into the SG, based on the descriptors is to show that you meet one or more of the criteria. Have a look at th following FAQs
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)
Do I have to attend WFIs while I appeal?
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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