ESA Medical Tribunal - what happens if I lose?

Kris2010

I am currently waiting to get a date for an ESA Tribunal hearing as I felt my Atos medical was completely flawed hence I was not awarded enough points.

I am very worried that if I fail the hearing, whether or not they can claim back any benefit paid from the date of the medical or the appeal review date?

Also, are there any published guidelines that Atos have to follow which could help my case? Without posting a long explanation, they were supposed to assess me in a high back chair with arms for sitting and didnt and I use a special seat cushion which they failed to mention anywhere in their report!

Thanks in advance for your help!

richard9991

Kris2010 wrote: »

I am currently waiting to get a date for an ESA Tribunal hearing as I felt my Atos medical was completely flawed hence I was not awarded enough points.

I am very worried that if I fail the hearing, whether or not they can claim back any benefit paid from the date of the medical or the appeal review date?

Also, are there any published guidelines that Atos have to follow which could help my case? Without posting a long explanation, they were supposed to assess me in a high back chair with arms for sitting and didnt and I use a special seat cushion which they failed to mention anywhere in their report!

Thanks in advance for your help!

If you fail at appeal then your assesment rate of esa if this is what you are claiming will stop and you will have to claim jsa you will not have to repay any benefit you have recived.

Kris2010

Thanks for putting my mind at ease!:money:

cit_k

Kris2010 wrote: »

I am currently waiting to get a date for an ESA Tribunal hearing as I felt my Atos medical was completely flawed hence I was not awarded enough points.

I am very worried that if I fail the hearing, whether or not they can claim back any benefit paid from the date of the medical or the appeal review date?

Also, are there any published guidelines that Atos have to follow which could help my case? Without posting a long explanation, they were supposed to assess me in a high back chair with arms for sitting and didnt and I use a special seat cushion which they failed to mention anywhere in their report!

Thanks in advance for your help!

If you fail the tribunal, there is possible scope to appeal further if the tribunal erred on a point of law or tribunal procedure. If you fail, you should speak to a welfare rights advisor or CAB worker for further help as to what your options are.

Your benefit, as has been said does not need to be paid back if you fail.

With regards to

Without posting a long explanation, they were supposed to assess me in a high back chair with arms for sitting and didnt and I use a special seat cushion which they failed to mention anywhere in their report!

Can you explain why (I dont mean medical reasons) you think they were expected to do this, was it agreed anywhere in writing, what leads you to believe they were meant to do this?

Kris2010

Thanks for responding. Where do I find a welfare rights advisor from?

With regard to the chair statement, the descriptor for my condition reads "cannot sit in a chair with a high back and no arms for more than 10 minutes...".

I note on the medical assessment report the Atos practitioner has stated "upright" chair rather than high back (although it was reclined when I was sitting on it due to my back and being 6 months pregnant!).

They timed me as 14 minutes which meant I went over the 10 minutes to obtain enough points but as I said the chair wasnt high back, was reclined and I had an aid (which it doesnt specify but other descriptors do allow for aids such as "walking with a walking stick or other aid).

Any thoughts? You have in fact helped already as I hadnt noticed the "upright" word before!

cit_k

Kris2010 wrote: »

Thanks for responding. Where do I find a welfare rights advisor from?

With regard to the chair statement, the descriptor for my condition reads "cannot sit in a chair with a high back and no arms for more than 10 minutes...".

I note on the medical assessment report the Atos practitioner has stated "upright" chair rather than high back (although it was reclined when I was sitting on it due to my back and being 6 months pregnant!).

They timed me as 14 minutes which meant I went over the 10 minutes to obtain enough points but as I said the chair wasnt high back, was reclined and I had an aid (which it doesnt specify but other descriptors do allow for aids such as "walking with a walking stick or other aid).

Any thoughts? You have in fact helped already as I hadnt noticed the "upright" word before!

The following is taken from a ESA handbook for assessors

It should be noted that observations refer to informal observations, not examination findings.
The report must contain sufficient detail. It is not enough to state "sat comfortably at interview";

better is to state

"sat comfortably for 25 minutes in an armless chair without fidgeting, and this indicates that there would be little likelihood of any problem with sitting for longer than 30 minutes"

Referring to a case involving the Personal Capability Assessment activity of 'sitting' a Commissioner (CSIB/12/96) has stated that the practitioner should make it clear how he has reached his conclusion especially if he does not see the person performing the activity.

Where the examining practitioner has not observed the claimant sitting in an upright chair with no arms, the practitioner must set out carefully why they have reached their stated conclusion.

For example:
’The claimant sat in an upright chair with arms for 20 minutes of the interview.
His posture was upright and he did not use the arms for support. He reports being able to drive to visit his parents every week, a trip of 1 hour without stopping.
Examination detailed below showed that he had a good range of pain
free back movements with no other relevant abnormalities. These findings are consistent with the ability to sit comfortably as defined for at least 2 hours

Other mentions of 'upright chair' are

Details of daily living
Consider the claimant’s ability in relation to:-
Watching television (for how long at a time and type of chair).
Other leisure or social activities, e.g. listening to the radio, using a
computer, sitting in a friend’s house, pub or restaurant, cinema, reading,knitting.

Sitting at meal times (which may involve sitting in an upright chair with no arms).
Time spent travelling in cars or buses.

(bold added by me)

speedfreek1000

Kris2010 wrote: »

Thanks for responding. Where do I find a welfare rights advisor from?

Check your local councils website 1st as they usually carry a list of local welfare services.

Failing that look on line for
CAB
DIAL
there's a few other national ones too.

Also it's worth looking for national/local charities who deal with your disablement as they will often have specific tailored benefit advice.

Kris2010

Thanks cit_k and speedfreek1000 for posting responses.

With regard to the chair, I made it clear at the medical that I cant sit in an upright chair but this and many other relevant facts were completely ignored and not reported on which I know others have had the same problems with!

I will check out the websites but any other advice would be gratefully received!