Medical for Incapacity Beneifit

jmf · 5 October 2004 at 3:11PM

Went for a medical for the above and have had a letter to say I did not score enough points to continue receiving Incapacity Benefit.
I am in constant pain from a pain under my shoulder blade, take maximum pain killers allowed per day and am waiting for an operation to remove a cyst near my wind pipe.
The questions I was asked did not seem to take account of my problem. Of course I can bend and touch my toes and walk and dress myself but I cannot do this all day every day.
Do you knowledgable people (Ted) feel I have a case for an appeal? If so any advice.

Fran · 5 October 2004 at 4:09PM

It sounds like you definitely have a case for an appeal. I would suggest a visit to your local Citizens Advice Bureau or other welfare benefits advice centre as soon as you can. You are more likely to be successful if you have the help of a representative and also if you go to an appeal yourself. As you only have a month to appeal, it's important to see someone as soon as you can. You might also ask them whether they think you would get Disability Living Allowance if you've had the condition for 3 months and expect it to last for another 6 months. In the meantime you will need to sign on for Jobseekers Allowance. If you get Income Support instead because they say you're not entitled to receive Incapacity Benefit, you will get less money. When you sign on, tell them the things that you are and aren't capable of doing.

Ted_Hutchinson · 5 October 2004 at 6:49PM

The success rate for IB appeals is not a good as for DLA appeals so it is particularly important that you go to a Welfare Rights organisation as soon as possible to start the appeal process.
Some Welfare Rights organisations prefer to do all the work relating to the appeal and are reluctant to take over an appeal you may have started yourself so find out from your local CAB or DIAL or local welfare rights provider if they will support you at the appeal and if they mind you writing immediately for a copy of PCA medical report.
There are however some people for whom the criteria don't apply but for whom work is medically impossible. One case was a person with extreme psoriasis which meant it was impossible for him to wear clothes, however I think your case is appealable as anything which can only be done with pain or severe difficulty should be ignored and this hasn't happened.
Benefitsandwork have a lot of links to previous IB decisions which may help you and also articles on the way the S of S has manipulated the wording of the criteria away from those intended by Parliament and if it comes to arguing the toss on some of the descriptors it may be necessary to resort to legal argument (which is why you need a rep)
The way the test should be conducted is set out in the Incapacity Benefit Handbook here
Incapacity Benefit Handbook just download the relevant sections as it's quite long otherwise. It may give you a better idea of how to emphasise the way your condition fits how the criteria should be interpreted.
You might also consider how being in constant pain may affect you mentally. It's unfortunately the case that mental illness is something folk will not admit to but being brave and stoic doesn't win points and points mean....IB so getting a history of anti-depressant treatment may have value in opening up the mental health test and some extra points which may well apply because of the effect of pain on your ability to do things your previously enjoyed.

Ted_Hutchinson · 5 October 2004 at 6:57PM

Fran has pointed out about your now having to claim JSA. Doing so will not put your Appeal in jeopardy.

Although you have to say to the JSA decision maker you are actively seeking work, in practice where you make it clear you have good reason to appeal the medical and that despite the fact you are "actively seeking work" you believe you are medically unfit for work, they will, until the appeal decision give you a fairly easy time with your Jobseeking commitments.

The appeal panel will ignore the fact that you are signing on for work when considering your appeal.

jmf · 7 October 2004 at 9:38AM

Thank you for your advice Fran and Ted.
I am going to see the CAB on Monday and also my Doctor.
Will let you know how I get on.

Ted_Hutchinson · 9 October 2004 at 6:38PM

You can find out a little more about DIAS here

While I completely understand that in some instances it may be necessary to pay for Welfare Rights Advice on the whole I think it should be avoided. CAB and DIAL and CLS are free for those on means tested benefits, although donations wouldn't be refused, there may also be provision for welfare rights concerns from your local authority so while I can see why some folk may wish to pay for the privilege of not waiting and having a no win no fee arrangement, I feel that entitlement to DLA or any DWP benefit should not depend on the expertise and manipulative skills of your adviser but on whether or not you actually meet the criteria which Parliament set down.

jmf · 12 October 2004 at 10:44AM

Yesterday when to CAB and appeal form was completed and I have sent it off. I never realised what was involved. I am glad you suggested getting help as appealing myself I would not have put anything much on the form except my tablets!
I am not looking forward to a tribunal but feel I have to fight for what I feel I am entitled to.
Now have to sit back and wait for a few months until they get around to my appeal.
Once again thanks folks for your help.

jmf · 1 November 2004 at 10:37AM

Just had the details from DWP about the medical I had in September. Checking them, there are 8 things that the doctor has written down that are incorrect from how long I have been ill to the strength of tablets I take.
Is the tribunal likely to take my word for it or side with the Doctor? I have checked with my GP who has agreed that the they have got it wrong about the tablets.

Ted_Hutchinson · 1 November 2004 at 5:08PM

there are 8 things that the doctor has written down that are incorrect from how long I have been ill to the strength of tablets I take.

I am afraid that simply showing the DWP doctor was wrong on some points of detail will not be sufficient to cast doubt on the whole report. I am afraid that there are cases where it can be shown that the report is 99% rubbish but the remaining 1% of evidence is preferred to the claimants protestations. You will need to appeal and it would be preferable if the Welfare Rights Organisation which helped with the appeal form pursued the claim with your help and attendance at the appeal hearing. Download the Benefits and Work guide to disability living allowance appeals here The fact this is for DLA appeals shouldn't concern you as the procedure is the same, the only real difference is that there are only two panel members so it is somewhat easier for them to stitch you up.
The success rate for IB appeals is significantly lower than for DLA appeals.

If the CAB hasn't the time or funding to represent you at the appeal then going by yourself will not prove as distressing or stressful as you might imagine.
It sounds like you might already have seen a copy of the EMP medical report. If you have and your doctor is willing to correct the errors it contains then this will be a big help to your case. You still need to show you meet PCA test criteria set out in thePCA TEST Calculator here

It would be helpful to your appeal if you could get your doctor in the letter in which it refutes the errors in the PCA report to state which of the test criteria he feels you meet most of the time otherwise you need to keep a diary or logbook of instances which you will be able to relate to the appeal panel showing the types of circumstances in which your daily life matches the descriptor statements applicable to you. The Benefits and work IB pages linked to in my first reply will lead you to more detail about what the descriptor statements were originally intended to mean and guidance on how they should be applied but the onus will be on you and/or your CAB representative, to show that despite what the DWP doctor says you really should meet the points threshold.

I am sorry but it isn't the case that you only have to show the case against you is fundamentally flawed, you have to show you meet the criteria as well.

Fran · 1 November 2004 at 5:15PM

Is the CAB advisor representing you? They will do a lot of the talking on your behalf, but the tribunal will ask you questions they're not sure about. They will also do a lot of the preparation work for the appeal. Good luck.

jmf · 10 February 2005 at 8:07AM

Finally have closure on this.
I went into hospital in December for major operation and continued sending in my sick notes to DWP with a letter asking to keep them on file pending my appeal. Had to cancel my tribunal as in hospital but arranged another date.
Yesterday received a letter from DWP telling me my case had been reviewed and they were reinstating my benefit!
Thank you to everyone for their advice.

Medical for Incapacity Beneifit

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