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Upper Tribunal Case SCE/151/201 Wheelchair and ESA
- MSCarer
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12 years 1 month ago - 12 years 1 month ago #97489 by MSCarer
Upper Tribunal Case SCE/151/201 Wheelchair and ESA was created by MSCarer
UT Case No CSE/151/2012 has been referenced on these forums previously. I have a number of questions.
1. Is this UT finding still applicable regarding its findings?
2. Can anyone clarify these findings in relation to using a wheelchair? Is my understanding that you can claim that using a wheelchair would harm your recovery because you had been advised to walk as much as you can to retain muscle tone correct? And that you could not use a wheelchair anyhow as you do not have wheelchair access to your home and your home is not large enough to use a wheelchair, for example, door openings are too small and there are built in obstructions etc.
3. I received an email from this website saying that changes to the WCA are coming into effect at the end of January – in particular to overturn rulings in the UT (Upper Tribunal). So, if this UT Case finding (CSE/151/2012) is still valid at this moment in time and I place it on my ESA50 form now and the WCA rules change thus negating the findings of the UT Case then will it make any difference if I have dated and signed the ESA50 form BEFORE the WCA changes take effect.
Or basically, are WCA changes backdated to ESA50 forms completed and returned BEFORE the WCA changes are made?!
Thank you
1. Is this UT finding still applicable regarding its findings?
2. Can anyone clarify these findings in relation to using a wheelchair? Is my understanding that you can claim that using a wheelchair would harm your recovery because you had been advised to walk as much as you can to retain muscle tone correct? And that you could not use a wheelchair anyhow as you do not have wheelchair access to your home and your home is not large enough to use a wheelchair, for example, door openings are too small and there are built in obstructions etc.
3. I received an email from this website saying that changes to the WCA are coming into effect at the end of January – in particular to overturn rulings in the UT (Upper Tribunal). So, if this UT Case finding (CSE/151/2012) is still valid at this moment in time and I place it on my ESA50 form now and the WCA rules change thus negating the findings of the UT Case then will it make any difference if I have dated and signed the ESA50 form BEFORE the WCA changes take effect.
Or basically, are WCA changes backdated to ESA50 forms completed and returned BEFORE the WCA changes are made?!
Thank you
Last edit: 12 years 1 month ago by Gordon.
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12 years 1 month ago #97491 by Gordon
This Case Law is still relevant, the changes to the ESA Descriptors do not come into effect until 28/01/13 and only affect assessments where the ESA50 was issued after this date. As far as I can tell from the changes, this Case Law would still be applicable after the changes.
However, it is important to understand what this Case actually says as Case Law rarely re-defines the way in which a descriptor works, and that is not case in this instance.
The Upper Tribunal judge set aside the claimants previous Tribunal Decision because the panel had not explored the issue of whether the use of a wheelchair was reasonable for that claimant. There is a suggestion that the Judge felt it was not, but they are clear in their adjudication, that it was not there role to make such a determination, and that a new Tribunal should investigate these matters.
So, the case requires future Tribunals to investigate whether the usage of a wheelchair is reasonable, but it does not define what should be considered reaonable.
The points you raise are all relevant to the question of reasonableness and should be considered by any panel looking at your case.
I hope this explains it.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Upper Tribunal Case SCE/151/201 Wheelchair and ESA
MSCarer wrote: UT Case No CSE/151/2012 has been referenced on these forums previously. I have a number of questions.
1. Is this UT finding still applicable regarding its findings?
2. Can anyone clarify these findings in relation to using a wheelchair? Is my understanding that you can claim that using a wheelchair would harm your recovery because you had been advised to walk as much as you can to retain muscle tone correct? And that you could not use a wheelchair anyhow as you do not have wheelchair access to your home and your home is not large enough to use a wheelchair, for example, door openings are too small and there are built in obstructions etc.
3. I received an email from this website saying that changes to the WCA are coming into effect at the end of January – in particular to overturn rulings in the UT (Upper Tribunal). So, if this UT Case finding (CSE/151/2012) is still valid at this moment in time and I place it on my ESA50 form now and the WCA rules change thus negating the findings of the UT Case then will it make any difference if I have dated and signed the ESA50 form BEFORE the WCA changes take effect.
Or basically, are WCA changes backdated to ESA50 forms completed and returned BEFORE the WCA changes are made?!
Thank you
This Case Law is still relevant, the changes to the ESA Descriptors do not come into effect until 28/01/13 and only affect assessments where the ESA50 was issued after this date. As far as I can tell from the changes, this Case Law would still be applicable after the changes.
However, it is important to understand what this Case actually says as Case Law rarely re-defines the way in which a descriptor works, and that is not case in this instance.
The Upper Tribunal judge set aside the claimants previous Tribunal Decision because the panel had not explored the issue of whether the use of a wheelchair was reasonable for that claimant. There is a suggestion that the Judge felt it was not, but they are clear in their adjudication, that it was not there role to make such a determination, and that a new Tribunal should investigate these matters.
So, the case requires future Tribunals to investigate whether the usage of a wheelchair is reasonable, but it does not define what should be considered reaonable.
The points you raise are all relevant to the question of reasonableness and should be considered by any panel looking at your case.
I hope this explains it.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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12 years 1 month ago - 12 years 1 month ago #97493 by MSCarer
Replied by MSCarer on topic Upper Tribunal Case SCE/151/201 Wheelchair and ESA
Thank you - I do not see any harm in mentioning this in my ESA50 form, I suppose the more I mention the more grounds for appeal there will be.
Last edit: 12 years 1 month ago by Gordon.
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12 years 1 month ago - 12 years 1 month ago #97495 by Gordon
There is certainly no harm in reminding those involved that they must actually look at the issue of whether it is reasonable for you to use a wheelchair, rather than just assuming that it is
Gordon
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Replied by Gordon on topic Upper Tribunal Case SCE/151/201 Wheelchair and ESA
MSCarer wrote: Thank you - I do not see any harm in mentioning this in my ESA50 form, I suppose the more I mention the more grounds for appeal there will be.
There is certainly no harm in reminding those involved that they must actually look at the issue of whether it is reasonable for you to use a wheelchair, rather than just assuming that it is
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Last edit: 12 years 1 month ago by Gordon.
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12 years 1 month ago - 12 years 1 month ago #97602 by MSCarer
Replied by MSCarer on topic Upper Tribunal Case SCE/151/201 Wheelchair and ESA
I actually wonder how many people who claim that they cannot propel a wheelchair have actually tried to get in and out of one?
There are so many problems getting in and out of a wheelchair for someone who does not have a disability - so how can you even use a wheelchair if you cannot safely get in and out of one?
Anyone who is claiming that they cannot use a wheelchair should first try and get in and out of one and note all the problems that you might have from the footrests to removing the arms and replacing the arms and all of this whilst trying to maintain your balance on your walking stick!
There are so many problems getting in and out of a wheelchair for someone who does not have a disability - so how can you even use a wheelchair if you cannot safely get in and out of one?
Anyone who is claiming that they cannot use a wheelchair should first try and get in and out of one and note all the problems that you might have from the footrests to removing the arms and replacing the arms and all of this whilst trying to maintain your balance on your walking stick!
Last edit: 12 years 1 month ago by Gordon.
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12 years 1 month ago #97611 by Gordon
Using a wheelchair should include a claimants ability to get in and out of the device, anybody who scores points for Moving from Seated to Another, should not be expected to be able to use a wheelchair.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Upper Tribunal Case SCE/151/201 Wheelchair and ESA
MSCarer wrote: I actually wonder how many people who claim that they cannot propel a wheelchair have actually tried to get in and out of one?
There are so many problems getting in and out of a wheelchair for someone who does not have a disability - so how can you even use a wheelchair if you cannot safely get in and out of one?
Anyone who is claiming that they cannot use a wheelchair should first try and get in and out of one and note all the problems that you might have from the footrests to removing the arms and replacing the arms and all of this whilst trying to maintain your balance on your walking stick!
Using a wheelchair should include a claimants ability to get in and out of the device, anybody who scores points for Moving from Seated to Another, should not be expected to be able to use a wheelchair.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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