tribunal decision no for incapacity pls help

penbee_2

i really dont no what to do pls help

my partner suffers migraines 2 to 3 a week lasting a day to a day and a half when we first put in claim he was occasionally sick (vomit) when we went out. Now it is nearly everytime he walks out the door and he is worse and worse about any callers to house (for repairs shopping etc) if I am not here. I care for my mother in a town 20 miles away and travel by train.

we were told by jo centre that he could not be a job seeker because he was to sick and to get doctor to write sick notes so we did they sent a questionare I filled it in he signed it and sent it back then on 31st of dec 08 we saw there doctor. He managed to get there just threating about it but not throwing up his dad took us in his car to just out side. he did not have a migranie that day (which now i feel about with the way they being)

the wrote and said from the 27/05/09 that he was not entiled. i wrote and appealed and wrote them a 11 page letter asking why they had not talked to gp neurologist or optitions or dentist for more infomation and why was it from that date not from the date there doctor saw him asking what was he suppose to do if he is not aloud to be a job seeker but is not sick enough to be sick. because i care for my mum the money comes in in my name as cares allowance and incmome support however he is getting no stamp paid so he wont be entiled to a pension and as i pointed out to them if he did not live with me he would be on street by now.

so today we get letter

the appeal is disallowed
the decision of the respondent issued on 27/05/09 is confirmed.
mr x does not satisfy the personal capability assessnebt having scored 0 points.

on his own evidence in the questionaire, mr x has problems when he has migraines. he has been referred to a neurologist and has now been prescribed medication. his gp has confirmed that, by the date of the decision, his migraines were less frequent, his symptoms had improved and he was stable with medication. there was no evidence that mr wren had been diagnosed with a mental health condition.

the last time we saw doc he asked how things where going and said he could not understand how they could say he was not sick when he was on medication and seeing the doctor and could not understand why they had not written to him. (as we saw when we looked at what they sent us) i phoned the tribunals people as soon as i got home from mums and said had the gp sent in infomation she said she could not look at local office information but that the tribunal did not normally contact doctors i said what the letter said and that if they had not contacted gp then it was a lie when she said they may have ment there doctor that we saw last christmas. she said we must write to them for full statment of decision and then appeal from there if we believe we should. I rang doctors and our doctor has retired today they said to ring back friday and a doctor could tell us if someone had written to them (we not ringing tomor because the doctor tomor is one that has a stinking attitude problem with me and my partner since we politely ask for a certificate way back and he just decided he would rather be nasty about it so we dont see him anymore) the things is what do we do because as far as i have been told it has to be a legal reason to appeal. well to me it is not true whether a gp did say it or not to say he is stable i could have cried on monday watching him be sick out side hospital before we went in to see the neurolgist and also if it was stable why would they be sending him back to neurologist at all. but they say it not about now but about then that relavant. i just dont no what the heck to do. im 25 he is 28 and i no alot of people would say dont worry about pension now but i wqorry so much not just about that but if i was run over or something he would be homeless because he really can not work i hope someone can help

penbee_2

we did not go to tribunal but i did explain that i did not want to make him sick and that if they wanted a certificate i would send it

NASA_2

Ok, that was long, and some of it was confusing, but I will try to at least answer some of the decisions.

The reason it is disallowed from the later date (27/05/09) is because it isnt the ATOS doctor that makes the decision on benefit entitlement. Its a DWP decision maker that does that on the evidence provided from the claimant and from the medical assessment. The claim will only have been disallowed at that date quoted.

As for why they didnt write to his doctor. Its my understanding that DWP Decision Makers are under no obligation to go searching for evidence in order to allow a claim to benefit. It is the job of the claimant, or their rep, to gather the evidence and provide the DWP with it. There are simply too many people signing on for them to write off to every GP in the land.

The second appeal has to be on a point of law ie. the Tribunal made a mistake because they applied the legislative requirement incorrectly. Its rare but not unknown that such an appeal would succeed.

There are options. He could claim ESA but, in all seriousness, if he failed the IB medical he is unlikely to pass the ESA medical unless his condition has significantly worsened.

penbee_2

thank you sorry if im confusing im really stress out by it. This really is the main problem they wont let him be jsa because they say he is to sick and i agree esa is probably going to be much the same as IB. If they have not contacted the GP and there letter clearly states that his GP confirmed then would that mean the decision was leagally flawed as they did not actually have that information. One of my problems is that the DWP site is not showing the critriea (sry spelling) and dirct gov does not seem clear enough on what does or does not count as sick also where do i stand legally with the JSA refusing to let him be a job seeker because a) his misses appointment to often because of sickness or b) he goes in they cringe as he looks like he will be sick on them and say your to sick to be JSA because it seems like he not aloud to be anything JSA say they can not take in to account how his migraines or what medication they try him on affects him it is IB/ESA that would do that. I just cant find anywhere that tells me legally where we stand and doctors charge us to get things from them. we got his medical records and sent them them that was £40 something and it was only £5 less for letter and we requested they talk to relavant people I just dont no how to build a case to appeal or how to make JSA accept the way he is. I will agree he could work from home on computer for some one that didnt mind him doing a bit now and then some times but that is not really going to happen that is everyones dream job and not rudely to him he has no G.C.S.E.'s so why would they chose him. He would like to learn but colleges would throw him off courses for lack of attendance and no body will pay for him to do home courses. (plus he wont leave house on own at all I have tried to get him to but he is a twin so not sure that a mental illness as such he just uncomfortable on own)

stazi

As NASA has said, you can only appeal against a tribunal decision on a point of law. I can only suggest you book an appointment with a local CAB/Advice Centre to discuss your situation.

penbee_2

i no but during day hours im caring for my mother which makes it rather hard as im her sole carer which is why i was trying to find help on here to be honest I feel like I should just give up because I dont no what to do but it does him no good at all sitting there being ill being told he is not. Im quite an optomist and look on the bright side but well basically if I die before him and they havent managed to make him better by then he can die in street. So that will make me sleep well sry I guess there is no help because I should have paid out more money we didnt have getting letters for them and he should be less positive about stuff because then they think well there nothing wrong. Well I no there is when I spent 24 hrs a day looking after one or the other of them. There no point in esa if they dont think he ill changing the name of it wont make any difference and im not going to make him vomit once a fortnight to be told he not able to be JSA so fingers crossed hey that I die last and have to live on my own a while so at least he will be ok hey.

Mancunian

did you get sorted out PenBee?

amber1979

You have so much on your plate, I don't know how you're holding it together.

Anyway, regarding the Citizens Advice Bureau, the one local to us does do out of ours sessions. Could you not manage half an hour one evening when you are coming back from your Mothers?

Good luck pet x