ESA Assessment: Hi I'm new to this site... - Fibromyalgia Acti...

Fibromyalgia Action UK
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ESA Assessment

Mazzy04
Mazzy04

Hi I'm new to this site. Got fybromyalgia arthritis and diabetes. Just had my ESA claim declined after assessment. Am waiting for 1 of assessors to ring me back about their decision. I have been told that I need to speak with them before I can apply for a mandatory decision. I am on hold to CAB at the moment. I barely go out due to severe pain in fact the only thing that doesn't hurt are my eyeballs. On pain meds and sedatives for sleeping not that it helps. Still falling asleep when everyone else should be getting up for the day. Just me and my faithful Jack Russel at home. Separated from husband and kids have flown the nest. Don't mind too much living on my own at least I no longer have to try and function as I used to do. No one can see me in pain anymore and they don't have to put up with my frustration at no longer being able to JUST DO IT. I really don't have the energy to fight the ESA but I know I have to. Worked hard all my life 52 now. Diagnosed 2 years finally had to stop working last year. Now it seems I can't even get the right benefits. I already get PIP at standard rate and a minimal sum of industrial injury disablement benefit. Still have to find housing costs etc. Not entitled to housing benefit as the house is in my husbands name but I've been paying the mortgage for the last 10 years. Who said hard work never killed anyone it's just about sent me to the other side. Anyone out there with any ideas and or help would be very grateful if you could assist.

13 Replies
oldestnewest

Terrible sorry to hear all this .you do not have to speak to them I wouldn't.you will get a letter .ask for a copy of medical report so you can see the lies etc .and go to MR and appeal.this is beomeing a joke so it is .for your own sake and to understand and come out fighting for wot your entitled to .do the esa self test.Google esa self test and benefits and work will pop up try that you do not give name etc and you will see wot points you should have got and good to know and understand take care .

Mazzy04
Mazzy04
in reply to Ajay575

Thank you for taking the time to reply to me. Just spoken to CAB and have got an appointment with them this Friday afternoon. I didn't ask to be ill and I certainly didn't ask to be unable to work anymore. The ESA have more than likely decided that anyone who wants to claim the benefits should be incapable of doing anything for themselves apart from breathing. Like most illnesses we have good days and bad days. Unfortunately we can't pick and choose these days. The so-called medics for the ESA need to take a step back and look and listen properly. One day it could be them or their nearest and dearest travelling along this path of pain and despair. I did do the self assessment and amazingly I scored 15 points. So if a computer website can determine this when it can't see you, how come a person who can see you come to a conclusion that you can work in paid employment when they have sat behind a computer writing exactly what they think and quite possibly fabricating the truth. I have just spoken to an appeal person and he said that they could say you're fit for work even if it's only 1 hour a week! Also I was informed that I should apply for Universal Credit while I'm waiting for a decision but, if I try and claim that I would have to stay on that even if I won the appeal. Amazingly UC is less than ESA. So at the moment I'm stuck between a rock and a hard place. My body hurts like bilio and I think my brain is going to explode. I have requested a copy of the full medical report and should receive that on Fri or Mon. So let the battle commence!

Rose54
Rose54
in reply to Mazzy04

Hi

Unfortunately all ESA self test will do is give you the score you feel is right

What you need to know is what the assessors are looking for and yes its true all thay are looking at is being able to work a few hours .

I have tries to paste you a link but not able to .

Google assessors guide for ESA

Very long but will tell you all thay are looking for

Mazzy04
Mazzy04
in reply to Rose54

Thank you. I will look at that. Pathetic that you have to fight tooth and nail for help but hey ho we do live in Great Britain.

Ajay575
Ajay575
in reply to Mazzy04

I terrible it is and your right about universal credit it is a nightmare .the esa and pip self tests give you wot your entitled to if filled in truthfully and theses are your points to appeal as you are entitled to them it is your rights if you tick a box truthfully and if that box is 4 points you should get those 4 points been on appeal a few times and those points we have raised them all separate like 9 questions for all those points on self test and won most times on them all if not still got 15 points . not wot you feel is right.some people fail the self test too.hope you get on ok on Friday and it is a good adviser.

Hidden
Hidden

Hi Mazzy,

EVERYONE fails the ESA Work Capability Assessment. So you're in very good company 🤗.

Do some research on the "independent" company that does the assessments. You'll find they're paying their assessors -- mostly occupational therapists -- more than double what they'd get if working for the NHS with years of experience.

Hmmm. Does that tell you something?

Anyhow, you fail the work capability assessment (WCA).

Then you submit a request for a Mandatory Reconsideration.

You'll fail this too, as DWP guidelines say the decision makers should reject over 80% of applications.

But DON'T GIVE UP.

The next stage is the Tribunal. They really are independent, and they mostly support people like you and me.

I've been through this twice now. Sure it's a pain, but the government wants to drag things out as long as they can, so your job is not to do what they want and simply give up.

It's a great feeling when the Tribunal Judge rips into the DWP. Almost worth the 9+ months wait.

Chin up,

John

Mazzy04
Mazzy04
in reply to Hidden

Thank you for your reply. Went to see CAB yesterday. They are really good. They said that my phone conversation with ESA was a mandatory appeal and that I would most probably have to go to tribunal. Today I received the full medical report done by the nurse for the ESA. Fabrication of the truth on all tests. Even said I had put hands behind my back etc I haven't been able to do that for years! No mention of my tiredness loss of balance and pain. Could write a book like War and Peace on the total bull that the nurse wrote. Basically you have to arrive with friends in tow, look and smell disgusting and look like you're in need of proper nourishment. You have to live in filthy homes and be one sandwich short of a picnic. I have looked at the websites for these so called nurses etc and am amazed at how they can sleep at night. They take the hypocratic oath on nursing but seem to forget that part as they do not do everything possible to help the likes of us. They more than likely view people with Fibromyalgia as work shy scrounges and that the condition can't possibly be as bad as we describe. Today I also received a new ESA form to fill in to continue receiving payments. Think the departments aren't telling each other what they are doing. So I'm more confused than normal as on the one hand they are stopping my payments from 30-07-18 and on the other to fill in another ESA form. So I will fill the form in and see what the outcome is.

Hidden
Hidden
in reply to Mazzy04

Hi Mazzy04,

Careful! That new ESA form you got might be for your input to the Mandatory Reconsideration. A reply to contest what was said in the Work Capability Assessment Report. NOT a repeat of your previous ESA50.

If that's so, although we're aware that DWP decision makers have a target to fail 80%+ of Mandatory Reconsiderations and so you might think it doesn't matter what you write, "they're going to dismiss my arguments anyway", IT DOES MATTER.

It's important to understand that the Tribunal can only judge your case based upon your original ESA50 form and any additional information supplied at the Mandatory Reconsideration stage. At the Tribunal, YOU ARE CONTESTING DECISIONS MADE AT THESE EARLIER STAGES. You cannot go outside this with completely new evidence, unless the Judge invites you to do so. It's crucial people understand this.

What is "on trial" at the Tribunal stage is the way the decision maker has interpreted the HCP's Work Capability Assessment report, as well as the evidence you've submitted, and whether the decision maker's decisions need to be overturned based upon points of law and case law. What it is NOT is a new opportunities to present evidence that the decision makers were never aware of. You are challenging the decision that the decision maker made, saying that they have not correctly interpreted the evidence that was placed before them.

Mazzy04, you need to be very careful to ensure that your Mandatory Reconsideration form contests what the Report from the Work Capability assessor said. Ideally, this means new doctors reports SPECIFICALLY CONTESTING EACH OF THE POINTS RAISED IN THE WCA REPORT as well as your own statements that contest the Report, point-by-point.

Be cautious of advice from the Citizens Advice Bureau. They're well-meaning volunteers. Usually very good, but if your ESA50 responses were "It Varies" or you relied upon words like, "Do NOT tick any box if you cannot perform the activity repeatedly without pain or risk to yourself or others or to a reasonable standard within a reasonable period of time", which appear in various forms within the ESA50 form, then it's unlikely the Citizens Advice will give you correct advise. The problem is a recent discovery by the DWP.

Unbelievably, Parliament forgot to include the "Don't tick any box ..." wording (which appears in various forms in the different versions of ESA50) in the Act of Parliament. The ESA50 form was copied from older disability benefits forms, and no-one noticed that THEY FORGOT TO PUT THE WORDS INTO THE ACT! They were supposed to be there. Until recently, everyone thought the words were in the Act. But the DWP lawyers discovered they're not in the Act and the DWP has been delighted to have hundreds of Tribunal cases thrown out of court, because the points of law they relied upon are inadmissible: they were never made law, because the caveat was never included in the Act.

Sadly, many branches of the Citizens Advice Bureau aren't aware of this. Also, many otherwise excellent websites have yet to pick up on the fact you cannot use the caveat as the linchpin of your argument to the Tribunal. The Act says nothing about pain or repeatability, etc., so the Tribunal court will dismiss any Appeal that relies upon such arguments.

The first words spoken by the Judge in my last Tribunal (I've won two) were, "I don't think the sentence you're relying on was ever included within the Act". Fortunately, she then went on to adjourn the hearing, together with a request for a specific report from my doctor. This gave me the opportunity to slip reference to Regulations 29 and 35 into the GP's report. But you can't rely upon getting a helpful Tribunal judge. Many Appeals are simply dismissed.

The Tribunal is a court of law. You will be arguing that the decision maker made wrong decisions because they had inaccurate or incomplete information from the health care professional. Those arguments must be based upon points of law -- what the Act or other legislation or case law says. In my case, the rug had just been pulled from under my feet.

If your condition "varies" or if you are arguing that you shouldn't be judged as fit for work because, although you can complete the activities, they cause you pain, or risk worsening your condition, or you might injur yourself or others around you, etc., then you must rely upon ESA regulation 29 or 35. These regulations were written to protect people in exceptional circumstances. They were little used, and are somewhat obscure. They were NEVER intended as a replacement for the protection that was omitted from the Act. As such, it takes a bit of mental gymnastics to understand how they are applied.

Regulations 29 and 35 say the same thing, but are applied slightly differently depending upon your circumstances. Regulation 29 says that you are to be judged as having limited capability for work if "the claimant suffers from some specific bodily or mental disablement and by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work."

Regulation 35 has pretty much the same effect.

The government did have some success in challenging this for a while --- lots of shock newspaper headlines come up in Internet searches -- but case law set by the higher tier Tribunals have quashed the government's attempt to cancel the effectiveness of regulations 29 and 35. So don't worry if you come across the scare stories saying you can't rely upon Regulations 29 or 35. These refer to interpretation "guidance" that the DWP issued to its decision makers in the Decision Maker's Guide publications. Fear not, the Tribunals' decisions are what matter, and they told the DWP to buzz off.

"Substantial Risk" probably doesn't mean what you think it does. If you can persuade your GP or Hospital Specialist to write a Risk Assessment, it might come up with a chain of possibilities resulting in something very serious happening. At worst, you're dead or become a zombie. The Tribunal courts have specified that it's Substantial CONSEQUENCES, and NOT the likelihood of the Risk materializing that defines a Substantial Risk. So, even if the likelihood of you dying is one in fifty million, if the your performing the activity could (potentially) kill you, the Risk is Substantial.

Sounds crazy? Doesn't matter. We're dealing with points of law. We are not dealing with so-called common sense. And if the DWP are fighting dirty, you have no choice than to roll your sleeves up and fight with all the weapons available to you.

As I'm a Type 1 Diabetic with nerve damage that causes phantom pain in my legs and feet, I successfully argued that being forced to repeatedly walk to the railway station could result in phantom pains at bedtime. This would disturb my sleep. In turn, this would result in problems with controlling my blood glucose levels. Which, in turn, would lead to well-documented (and feared) long-term Diabetic Complications; such as Blindness, and Kidney Failure, Limb Amputations, etc. Notice that it's a chain of cause-and-effect, terminating in Substantial Consequences or the Risk thereof.

So, Mazzy04, if this scenario describes your conditions -- as versus whether which boxes you ticked in your ESA50 were accepted -- you cannot rely upon that "without pain" or "without endangering yourself or others" in its original form. Instead, you need to perform a Risk Assessment and argue your case within Regulations 29 or 35. You might say something like you sometimes have poor eyesight or lack of feeling in your hands. This is "some specific bodily ... disablement and by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person", because you might not see someone when carrying dangerous tools in the workplace, or you might be unable to control a power tool and injur yourself or a bystander.

Also, be aware that Regulations 29 or 35 have wide-ranging effect. They apply to attending work related activities assigned by the Jobcentre; what activities you might be required to do at work; and things that might happen getting to and from your workplace or where a work related activity is taking place.

Hope this helps. It's not really that complicated once you get your head around things. Your ESA50 and Mandatory Reconsideration submissions are what you'll rely upon if you need to go to the Tribunal. The Tribunal can only consider whether the decision makers made a legal mistake in rejecting your claim. And what you submit in your ESA50, later clarified (in terms of arguments against the WCA Report) in your Mandatory Reconsideration submission.

I think you'll find that new form they've sent you is your submission for the Mandatory Reconsideration. The DWP sometimes tries to trick people into submitting their Mandatory Reconsideration arguments over the phone (Not giving you the opportunity to write a carefully considered written response). I got this phone call, but was absolutely insistent that no decision was to be made until I had submitted further written evidence.

All the best,

John

Hidden
Hidden
in reply to Hidden

Anyone relying upon Regulations 29 or 35 should point their advisor (probably the Citizens Advice) to the following information published by the Child Poverty Action Group in 2015:

cpag.org.uk/content/esa-and...

It's a bit dated, but is essential in convincing your local Citizens Advice advisor, GP or Hospital Specialist that the ESA50 form contains erroneous material, and that they need to get out their Crystal Ball, as it says in the article.

John

Hidden
Hidden
in reply to Hidden

Forgot to mention. If you've got loss of sensory awareness -- lack of feeling in hands or eyesight problems -- unless you ALSO have mental health problems, you wouldn't have been able to tick the "substantial risk" box in your ESA50 submission. (Or, if you did, it would have been ignored.)

The problem with the ESA50 form is that it only recognises 'awareness of danger' problems in the section dealing with mental health. If yours is a physical problem related to nerve damage or Fibromyalgia, there's nowhere to record this in the ESA50 form.

Instead, you must use Regulation 29 or 35 in the manner explained above.

John

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