- Posts: 5
- Forum
- Members forums
- ESA, PIP and DLA Queries and Results
- Advice with regard to UC - Appeal to Tribunal
× Members
Advice with regard to UC - Appeal to Tribunal
- Stephen57
- Topic Author
- Offline
Less More
1 year 9 months ago #278638 by Stephen57
Advice with regard to UC - Appeal to Tribunal was created by Stephen57
Preamble:
My wife is suffering from Long Covid after having the misfortune to get Covid three times in the last year. She is also suffering from Chronic Fatigue Syndrome. My wife has been receiving 'Fit Notes' since last November.
My wife completed a Work Capability Assessment (WCA) over the phone in December '22. She was awarded 0 points and not put in the Limited Capacity for Work category. We asked for a copy of the WCA but didn't receive it until well after the deadline for Mandatory Reconsideration. We did send the request for a Mandatory Reconsideration within the month but, of course, it was rather 'toothless' as we hadn't received the WCA report. I am now just about to submit, online, the request that the matter goes to tribunal.
My appeal
I am (we are) appealing on two main grounds
1) That the WCA did not give sufficient weight to the probability that being asked to do 25 hours of work/work related activity would set back my wife's recovery.
2) That my wife should have been awarded 24 points for the following:
a) difficulty with communication (Physical Activity) - conveying and understanding messages. My argument is that the WCA could not accurately assess this difficulty as the WCA was over a phone, which my wife had turned up to max. volume right beside her ear. (12 points)
b) difficulty with learning moderately complex tasks and initiating and completing two tasks. My argument is the the WCA could not accurately assess this difficulty through the nature of the questions/tests. The questions were of no greater difficulty than 100 minus 25 and there were no more than a few such questions over a short period of time. This attempt at assessing how my wife copes with the 'brain fog' associated with Long Covid, was flawed because the 'test' bore no relationship whatsoever with the stresses and strains of work. (12 points)
I am also adding a third point
3) That the process was flawed with regard to the Mandatory Reconsideration. Having to ask for the reconsideration within a month and not be given the WCA report within that month meant that we were not given the chance to add reasons for our reconsideration.
Advice
Can anyone give me some advice with regard to all the above? Can I add or improve it in some way?
My wife is suffering from Long Covid after having the misfortune to get Covid three times in the last year. She is also suffering from Chronic Fatigue Syndrome. My wife has been receiving 'Fit Notes' since last November.
My wife completed a Work Capability Assessment (WCA) over the phone in December '22. She was awarded 0 points and not put in the Limited Capacity for Work category. We asked for a copy of the WCA but didn't receive it until well after the deadline for Mandatory Reconsideration. We did send the request for a Mandatory Reconsideration within the month but, of course, it was rather 'toothless' as we hadn't received the WCA report. I am now just about to submit, online, the request that the matter goes to tribunal.
My appeal
I am (we are) appealing on two main grounds
1) That the WCA did not give sufficient weight to the probability that being asked to do 25 hours of work/work related activity would set back my wife's recovery.
2) That my wife should have been awarded 24 points for the following:
a) difficulty with communication (Physical Activity) - conveying and understanding messages. My argument is that the WCA could not accurately assess this difficulty as the WCA was over a phone, which my wife had turned up to max. volume right beside her ear. (12 points)
b) difficulty with learning moderately complex tasks and initiating and completing two tasks. My argument is the the WCA could not accurately assess this difficulty through the nature of the questions/tests. The questions were of no greater difficulty than 100 minus 25 and there were no more than a few such questions over a short period of time. This attempt at assessing how my wife copes with the 'brain fog' associated with Long Covid, was flawed because the 'test' bore no relationship whatsoever with the stresses and strains of work. (12 points)
I am also adding a third point
3) That the process was flawed with regard to the Mandatory Reconsideration. Having to ask for the reconsideration within a month and not be given the WCA report within that month meant that we were not given the chance to add reasons for our reconsideration.
Advice
Can anyone give me some advice with regard to all the above? Can I add or improve it in some way?
Please Log in or Create an account to join the conversation.
- Gordon
- Offline
Less More
- Posts: 51288
1 year 9 months ago #278646 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Advice with regard to UC - Appeal to Tribunal
Stephen57
Forgive me if the following sounds harsh but I am trying to help.
First, I assume you have had a Decision on the MR you mention, you cannot submit an appeal unless you have the Mandatory Reconsideration Notice from the MR.
As to your arguments for the appeal, you need to approach this differently, they are not detailed and you need to approach it from the point of view of the Descriptors and what your wife cannot do and why. so as an example;
My wife cannot complete Descriptor 50.c, this is because of her [condition] as we explained in her ESA50, here, here and here. The assesssor argues that she can but this is not supported by the evidence we supplied with the ESA50, see page X.
As to your specific arguments;
1. The WCA does not assess how many hours the claimant can work so your argument will be ignored. There is a test as to whether they can work or not but this requires a specific condition and a defined risk to the claimant or others if asked to do so. From your post your wife does not appear to meet this requirement.
2a. You need to be specific with Activity and Descriptor you believe your wife meets. So I think you are talking about Communicating hearing and reading, there is no 12 point Descriptor for this.
The bar for this activity is very high, I don't believe your current argument addresses the requirements to score.
2B. Arguing the process is flawed will not score you points. You need to offer specific reasons in regard to the Descriptors for this activity.
3. I'm afraid this is not relevant to getting the decision revised.
Please do not lose heart, you just need to change your approach.
Gordon
Forgive me if the following sounds harsh but I am trying to help.
First, I assume you have had a Decision on the MR you mention, you cannot submit an appeal unless you have the Mandatory Reconsideration Notice from the MR.
As to your arguments for the appeal, you need to approach this differently, they are not detailed and you need to approach it from the point of view of the Descriptors and what your wife cannot do and why. so as an example;
My wife cannot complete Descriptor 50.c, this is because of her [condition] as we explained in her ESA50, here, here and here. The assesssor argues that she can but this is not supported by the evidence we supplied with the ESA50, see page X.
As to your specific arguments;
1. The WCA does not assess how many hours the claimant can work so your argument will be ignored. There is a test as to whether they can work or not but this requires a specific condition and a defined risk to the claimant or others if asked to do so. From your post your wife does not appear to meet this requirement.
2a. You need to be specific with Activity and Descriptor you believe your wife meets. So I think you are talking about Communicating hearing and reading, there is no 12 point Descriptor for this.
The bar for this activity is very high, I don't believe your current argument addresses the requirements to score.
2B. Arguing the process is flawed will not score you points. You need to offer specific reasons in regard to the Descriptors for this activity.
3. I'm afraid this is not relevant to getting the decision revised.
Please do not lose heart, you just need to change your approach.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Please Log in or Create an account to join the conversation.
- Stephen57
- Topic Author
- Offline
Less More
- Posts: 5
1 year 9 months ago #278669 by Stephen57
Replied by Stephen57 on topic Advice with regard to UC - Appeal to Tribunal
Gordon,
I was in a quandary as to how to phrase my appeal. The 'health professional' has denied the validity of any of the claims regarding my wife's suitability to be put in the LCW category. Thanks to your advice, I am now in a better position to phrase them.
Sadly, I don't have the ESA50 as this part was handled by Citizen's Advice who were originally quite helpful and suggested the whole thing. They've become pretty slow in replying to our request for help in this matter and as the deadline is the 8 Apr 23. Things are not looking good.
I was in a quandary as to how to phrase my appeal. The 'health professional' has denied the validity of any of the claims regarding my wife's suitability to be put in the LCW category. Thanks to your advice, I am now in a better position to phrase them.
Sadly, I don't have the ESA50 as this part was handled by Citizen's Advice who were originally quite helpful and suggested the whole thing. They've become pretty slow in replying to our request for help in this matter and as the deadline is the 8 Apr 23. Things are not looking good.
Please Log in or Create an account to join the conversation.
- Gary
- Offline
Less More
- Posts: 8213
1 year 9 months ago #278671 by Gary
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gary on topic Advice with regard to UC - Appeal to Tribunal
Hi Stephen57
What you want to get hold of, is a copy of the assessors report called a UC85, you can do an out of time appeal with good cause. You have up to 13 months to do an out of time appeal, I did one a few months ago, by the time the claimant came to us it was 8 months out of time, we then had to get a copy of the assessors report before we could produce a submission and then put in for an appeal, in total we put in an appeal at 10 months, we explained the reason for the late appeal was waiting for the assessors report, finding an advice agency to help and ill health, the claimant had been hospitalised.
We have heard today the the appeal has been accepted and received the bundle of documents, not yet had an appeal date, the initial claim goes back to 2019.
Gary
What you want to get hold of, is a copy of the assessors report called a UC85, you can do an out of time appeal with good cause. You have up to 13 months to do an out of time appeal, I did one a few months ago, by the time the claimant came to us it was 8 months out of time, we then had to get a copy of the assessors report before we could produce a submission and then put in for an appeal, in total we put in an appeal at 10 months, we explained the reason for the late appeal was waiting for the assessors report, finding an advice agency to help and ill health, the claimant had been hospitalised.
We have heard today the the appeal has been accepted and received the bundle of documents, not yet had an appeal date, the initial claim goes back to 2019.
Gary
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Please Log in or Create an account to join the conversation.
Moderators: Gordon, Gary, BIS, Catherine, Wendy, Kelly, greekqueen, peter, Katherine, Super User, Chris, David