ESA medical- who passes?

mardatha

What do you need to be excused work in the new system? My DIL is terminally ill with a lung disease and had a near-fatal heart attack (resussed twice) then a collapsed lung. She had the ESA medical and they passed her fit for work. Her appeal is today - what do you think of her chances of passing as unfit for work?

sleepless_saver

People who are terminally ill should be fast tracked into the ESA support group (though this doesnt always happen - see link). This must be very distressing for all of you.

rogerblack

sleepless_saver wrote: »

People who are terminally ill should be fast tracked into the ESA support group (though this doesnt always happen - see link). This must be very distressing for all of you.

Not quite.

You're entitled to be placed in the ESA work-related group (I question seriously they'd enforce the work-elements) if you are suffering a terminal progressive illness, and death is expected within 6 months.

If it's not, then the routes to ESA are either:
Pass the test of 'likely to cause harm to any person if the claimant is found not to have limited capacity for work/work related activitiy'.
Get 15 points on the limited capacity for work test.
Pass one of the criteria for entry into the support group (limited capacity for work related activity)

http://www.dwp.gov.uk/docs/m-06-11.pdf page 6 and on. You can only score once for each descriptor in the first test, and need only to match one in the second test.

sleepless_saver

rogerblack wrote: »

Not quite.

You're entitled to be placed in the ESA work-related group (I question seriously they'd enforce the work-elements) if you are suffering a terminal progressive illness, and death is expected within 6 months.

If it's not, then the routes to ESA are either:
Pass the test of 'likely to cause harm to any person if the claimant is found not to have limited capacity for work/work related activitiy'.
Get 15 points on the limited capacity for work test.
Pass one of the criteria for entry into the support group (limited capacity for work related activity)

http://www.dwp.gov.uk/docs/m-06-11.pdf page 6 and on. You can only score once for each descriptor in the first test, and need only to match one in the second test.

Don't agree, sorry. If life expectancy less than 6 months, then:

"Special rules apply to people who are terminally ill. We will fast-track customers with a terminal illness into the Support Group of Employment and Support Allowance so that we can ensure they receive everything that they are entitled to as quickly as possible. They will not have to participate in a work-focussed health-related assessment or any other work-related activity but they can volunteer to do so if they wish."

MrsManda

Did your DIL claim under the special rules and provide a doctors report?
On the application form for ESA there's a section which asks if you are claiming under Special Rules (i.e. are terminally ill and not expected to live for more than 6months). If you tick Yes you are asked to provide a DS1500 report from your doctor.

If she claimed under special rules and is not currently working she shouldn't have required a medical at all and been classed as having a limited capability to work and put into the support group.

42018 Claimants are treated as having LCW and do not have to undergo the LCWA if any of the circumstances in DMG 42019 apply to them1 unless they are treated as not having LCW because they are working

42019 For the purposes of DMG 42018 the circumstances are that a claimant is
1. terminally ill (see DMG 42020 et seq)

2. receiving treatment, or is likely to receive treatment within six months after the date of the LCW determination, or is recovering from treatment by way of intravenous, intraperitoneal or intrathecal chemotherapy, and in the case of recovery the DM is satisfied the claimant should be treated as having LCW

http://www.dwp.gov.uk/docs/dmgch42.pdf

jonty1970

I'm so sorry to hear about your DIL .

My sister has bi polar and is waiting for a tribunal date.
She was found fit for work.
This week, she keeps saying she would be better off dead. I'm worried sick.
Atos, The DWP and this government don't care about sick people.
They cost too much money!

rogerblack

sleepless_saver wrote: »

Don't agree, sorry. If life expectancy less than 6 months, then:

From the same document - for doctors - "
DWP may ask you to provide a DS1500 report for patients who tell DWP they are terminally ill (a life expectancy of no more than 6 months)."

Muttleythefrog

mardatha wrote: »

What do you need to be excused work in the new system? My DIL is terminally ill with a lung disease and had a near-fatal heart attack (resussed twice) then a collapsed lung. She had the ESA medical and they passed her fit for work. Her appeal is today - what do you think of her chances of passing as unfit for work?

Assuming special rules don't apply... maybe they do... it is discussed above... I'd say chances must be decent of winning appeal. It's worth remembering this benefit isn't really decided (except in assessment phase) on the basis of 'unfit for work' or 'fit for work' but against the descriptors (which imply some general area of limitations in working capability with specific 'tests') for the two main phase groups (WRAG and Support Gp). If special rules aren't applying then it will come down to a test of evidence against those descriptors.

If things go wrong she may be able to re-apply (especially if 6 months passed since decision made by DWP). With some advice from people here it could prove much more fruitful... supporting evidence could be collected (for relevant descriptors identified), and presented if it wasn't first time around... and the issue of special rules could be looked into.

I wish her the best... and if you could update us on outcome it would be interesting.

mardatha

Ok many thanks. When I said terminally ill, she has an incurable lung disease and would need a transplant to cure it - but she cant have a transplant, they won't do it because of the heart condition. They said life expectancy of between 3-7 years if she's careful. So the DWP definition of terminal illness would seem to be different.That's my fault for unintentionally misleading
She has phoned and said her appeal has been disallowed. So she doesn't know what to do next. She has a doctors line that runs out on 16th Oct. But will they pay her any more ESA or does that stop immediately? She phoned the JC and they said they "didn't know" ...!!

Muttleythefrog

mardatha wrote: »

Ok many thanks. When I said terminally ill, she has an incurable lung disease and would need a transplant to cure it - but she cant have a transplant, they won't do it because of the heart condition. They said life expectancy of between 3-7 years if she's careful. So the DWP definition of terminal illness would seem to be different.That's my fault for unintentionally misleading
She has phoned and said her appeal has been disallowed. So she doesn't know what to do next. She has a doctors line that runs out on 16th Oct. But will they pay her any more ESA or does that stop immediately? She phoned the JC and they said they "didn't know" ...!!

Really sorry to hear that. I think her money will stop when they receive the decision at DWP as sicknote is not an entitlement to the benefit other than for assessment rate during assessment phase or assessment rate while awaiting appeal.

There are some things she can do.

Roger of the like will be along to correct any errors I make..lol

1. She can request a statement of reasons for the tribunal's decision. If an error in law has been made she can appeal... try to get the tribunal decision wiped out in effect and probably a new appeal ordered. This is probably a non-starter... to follow this route will require good legal advice and help probably... and of course relies on showing the tribunal made error in law which isn't a likely reality...although it does happen. This option is therefore unlikely to be a realistic one and even if it succeeded there is still the issue of would she likely win a new appeal (with the law correctly applied instead).

2. If 6 months have passed since the DWP turned her down..(i.e. made the decision she appealed unsuccessfully against today) then I understand she can re-apply. There is a time barrier on re-applying for ESA after a previous failed claim... 6 months... although this can be overridden if claiming health significantly worse or new health problem. If she had an oral hearing (recommended over a purely paper based one as statistically much more likely to succeed) today then I suspect 6 months may well have passed... they take months to arrange currently.

3. She could look at alternative benefits. When people fail to get ESA it's generally assumed then they should be applying for JSA... but JSA of course may not be appropriate for health reasons.. something the system fails to accommodate in light of a failed Work Capability Assessment for ESA.

If she decides to re-apply for ESA I think you all need to look at the descriptors... the descriptors for WRAG and Support Gp (http://www.tameside.gov.uk/esa/wca and http://www.tameside.gov.uk/esa/lcwra)

Decide realistically what descriptors should apply to her. If she doesn't qualify according to yourselves then ESA is going to be a battle to get. If she does qualify then look to gathering supporting evidence during the 3 month assessment phase (or rather assessment delay..lol.. more accurate description)... to confirm the health conditions and the descriptors that apply if possible. It would help case come the WCA. I presume also you have a statement of reasons why the DWP reached its decision... and a statement of reasons can be requested from tribunals service regarding today's decision... these documents (and the ATOS medical report) may be revealing in showing whether her problem regarding the WCA is more a case of failing to provide the evidence or failing to meet the benefit criteria.

http://www.dwp.gov.uk/docs/wca-handbook.pdf is the DWPs own handbook regarding the WCA... useful for reference and guidance. Bottom of page 31 is the start of the section on special circumstances... that may be relevant in this case.

Good luck!

pmlindyloo

Your DIL can appeal again.

What happens after an appeal

After the appeal has been heard, you will be sent a letter that explains the tribunal's decision. If you want more details about the reasons for the decision and the tribunal’s findings, you can ask for this by contacting HM Courts and Tribunals Service within one month.
If you disagree with the decision of the First-Tier Tribunal, you may be able to make a further appeal to the Upper Tribunal. They are independent lawyers expert in benefit law. You can only appeal to the Upper Tribunal if you disagree with the First-Tier Tribunal’s interpretation of the law. You cannot appeal if you think that the Fist-Tier Tribunal’s conclusions about the facts of your case are wrong.
Appealing to the Upper Tribunal is only possible if it involves the interpretation of the law. If you want help with your appeal, you should consult an experienced adviser, for example at a Citizens’ Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

Also information about appealing here:

http://www.dwp.gov.uk/docs/gl24dwp.pdf

I would really urge you to get help if you decide to appeal, particulary as the criteria for the second appeal are quite complicated.

I am not sure about whether you can continue to claim ESA until the doctor's fit note runs out or whether you have to put in a claim for JSA.

Can anyone help on this particular point?

ps Sorry, crossed posts.