ESA work capability question

Katykat

Dispite winning my tribunal earlier this year, the DWP are now putting me through the whole process again. I have received the ESA 50 form which I am ploughing through at the moment. I fully expect to be sent for another WCA with ATOS. Of course i am wary about this as they put a load of rubbish in the last one, which is why it had to go to tribunal so I'm hestitant about how to fill the form in. I am under the impression that the WCA is exactly what it says on the tin, a WORK capability assessment, not an assessment of what you can do around the house. Would I be within my rights to ask this question when I go for the assessment?
I have completed a CBT course ( arranged by the DWP) and I am partway through a Pain Management course ( arranged by my Consultant) and these courses have enabled me to manage my condition on a day to day basis. I am getting on with my life. However, this method would not work in a workplace, as obviously, I would not be in control. So, when a question asks me if I can do a particular function, if I could do this function at my own pace with rest periods, what should I answer? Because I could do this at home, but not in the context of a paid job. I dont want to mislead on the form, but equally I dont want to shoot myself in the foot.

bobajob_1966

Can you explain why you cannot adapt these techniques to the workplace? CBT skills tend to be transferable to different scenarios.

Katykat

I'm working to a pacing method. I can perform an activity for a few minutes, then either go to a different activity or rest, whichever is best suited to how much pain I have. I am aslo on fairly strong painkillers that sometimes cause lightheadedness, so then i have no choice but to stop and rest. I'm not sure an employer would be sympathetic to any of this.

Muttleythefrog

Katykat the descriptors for the benefit are literally applied really. The work capability assessment I suppose is best viewed as the name for a set of specific tests (e.g. ability to communicate simple message) that cover various areas of disability that are meant to indicate some limitation in ability to work. You probably already know this..but it is worth restating... and sadly the WCA has its own limitations... it doesn't account for all people's problems in a realistic way in relation to work environment. I think you'll have to try to find some way of highlighting the limitation while answering the questions honestly. Perhaps using additional info to explain that which you do above if you feel you're not conveying your difficulties in full detail. Have you got a particular question (or questions) on the form in mind.. people may be able to give more specific advice.

Also it is worth noting that you could reduce chances of failing a WCA and being called for face to face medical by sending in some good supporting medical evidence with the form... obviously the closer that evidence is to the descriptors the more compelling it likely will be. It might also be worth looking at how you managed to win your appeal... although the descriptors have been amended since... if you got a statement of reasons for that tribunal decision or the decision notice is revealing it may help with context for how you will pass the WCA in theory.

bobajob_1966

Katykat wrote: »

I'm working to a pacing method. I can perform an activity for a few minutes, then either go to a different activity or rest, whichever is best suited to how much pain I have. I am aslo on fairly strong painkillers that sometimes cause lightheadedness, so then i have no choice but to stop and rest. I'm not sure an employer would be sympathetic to any of this.

OK, so when asked if you can do x, you can explain as above - you can do it for a few minutes, then will need to rest/ vary the activity etc. You can also explain what would happen if you do not rest.

The WCA does not take into account how attractive an employee you would be, but rather whether you *could* work in a suitable role/ with reasonable adjustments etc.

rogerblack

http://www.britishcaselaw.co.uk/gs-v-secretary-of-state-for-work-and-pensions-2010-ukut-244-aac-15-july-2010 is a copy of a decision of the upper tribunal - for ESA.

It states, in part.
"13. It follows that the tribunal was wrong to consider the practicalities of dressing, the type of shirt and so on. Even the Secretary of State’s representative, having submitted that a functional analysis was appropriate, was tempted into this type of speculation. It is important to appreciate the context. The ultimate purpose of the descriptors is to test a person’s capability for work. They test the claimant’s manual dexterity for work-related purposes. They do not test the claimant’s ability to self-care.The reference to shirts and blouses is for the purpose of illustration. They are not words of definition or limitation."

Katykat

Thanks guys. Muttley, in response to whether there is a particular question. For instance, I can do the ironing with a special adaptor for the handgrip, but I cant stand or sit in one position for more than 5 minutes, so I do the ironing in 5 minute intervals, & lie down in between. When I was asked the question in my first assessment, "can you sit for more than 30 minutes, i answered no. But i was sitting at the time and I didn't tell the examiner that I was uncomfortable. So he put in the report " was observed to be sitting for 30 minutes. during that 30 mins, I got up several times , but he didn't document this. Its very irritating when your answers are altered in this way. Luckily the tribunal accepted it, but hey ho, here we go again.

bobajob_1966

You need to be as full in your answers as possible. Don't be afraid to write too much in your ESA50, better to do that than have to try to elaborate later on.

Muttleythefrog

Katykat wrote: »

Thanks guys. Muttley, in response to whether there is a particular question. For instance, I can do the ironing with a special adaptor for the handgrip, but I cant stand or sit in one position for more than 5 minutes, so I do the ironing in 5 minute intervals, & lie down in between. When I was asked the question in my first assessment, "can you sit for more than 30 minutes, i answered no. But i was sitting at the time and I didn't tell the examiner that I was uncomfortable. So he put in the report " was observed to be sitting for 30 minutes. during that 30 mins, I got up several times , but he didn't document this. Its very irritating when your answers are altered in this way. Luckily the tribunal accepted it, but hey ho, here we go again.

Ah.. that's fairly common sadly. I scored nothing in relation to memory/concentration... but report failed to mention I took notes to maintain focus on the questions at hand and that I had a wealth of data in front of me to ensure I didn't forget key information and dates..lol. I think all you can do in the actual medical is as for the ESA50... be explanative if you feel work context isn't being conveyed. After all as roger highlights above.. an upper tribunal has stated how the WCA should be approached and if they do it in that manner you should be looked at appropriately.

rogerblack

In addition - the usual comments.
Record the WCA secretly, or take someone with you who can take notes (and records the WCA secretly.

Request a copy of the WCA from the DWP early and often, and request that the decision is delayed until you can supply corrections to it, as you feel it may have misrepresented your case.
Get a full copy of your file occasionally, they regularly destroy old documents, it may be useful to refer back to old copies.
Send all letters recorded delivery, and ideally a week before their deadlines, so they have them in the system.

Tia_Junior

Katykat, whether or not there are targets and incentives for Atos, the whole process is loaded in one direction, so it is important that you say all you have to say on the ESA50 attaching as many pages as you need to. Far better to cover it all at the outset rather than try to add in things you overlooked later. I would not advise recording the WCA secretly, but do it openly – this is a proposal that DWP is considering across the board so if the HCP objects, that in itself tells a story. Part of the trouble is that technology these days makes it too easy to manipulate any digital file. Attach and take with you copies of anything relevant – even X-rays (an advantage of the same technology). Remember that the HCP is mainly ticking boxes on a terminal on a multiple choice basis that may or may not fit well with your condition. There are facilities for them to add text, but they are discouraged from using it. As the WCA progresses, the computer software used the early answers to suggest options for what comes afterwards to the point of drafting the final conclusions, which the HCP then just signs off. Be careful with seemingly innocent questions as there are areas where a particular interpretation is applied whether accurate of not. E.g. a trip to the supermarket means you can walk at least 800 meters and even turning up to the WCA on your own has an interpretation!!! Make sure your condition and treatment are accurately recorded or the symptoms of brain tumour might get logged as no more than a headache – there is a tendency throughout to dilute and understate. One glaring omission from this is any coherent definition of what “work” means, so ask the HCP to define what it is they are assessing you for – don’t be surprised if the answer is vague. The report that results is an ESA85 which DWP then uses to decide on ESA entitlement or not. They say that they consider all sorts of other information, but really it’s just the ESA85 that matters. DWP will send you a copy of it if you ask. I could go on for ages, but hopefully this will get you started.