ESA cont based stopping

ankspon

Yes i understand that but surely they are not the be all and end all regarding the health and capability of peoples health problems

Boots888

The new descriptors are challenging to say the least, the old ones were hard enough though I remember it being more black and white.

These days one needs not only help in filling in the forms and support when attending the interview, but the appeals process is tricky even for the most intelligent of people. Bringing in the need for recording interview just emphasises it's a "them against us" trial.

This is born out in the success rate of appeals with the help of representation from qualified welfare right legal eagles.

The whole process is becoming a confrontation, like a prosecution and a defense and who comes out on top depends on the advise you're lucky to get or not.

It's like a criminal trial. Nothing to do with who'se guilty or innocent, just who puts the better case before the judge.

rogerblack

ankspon wrote: »

Yes i understand that but surely they are not the be all and end all regarding the health and capability of peoples health problems

These descriptors are the law of the land.
They have been voted on and approved by parliament as appropriate tests.

They are arbitrary, and create unfairness. This is not actually illegal.

There is little way to challenge the actual wording of the descriptors in court.
Arguing this at a tribunal, or to the DWP will not do anything productive.

The only case this may be possible is if you find some inconsistency in the law or its implementation that means that you can apply for Judicial Review.

You need to understand the descriptors, and work out if you are covered by any.
(Do not neglect any because they are not your real problem - consider if a rational person who follows you around 24*7 could reasonably make a case for them)

If you are, then get as much evidence as you can to back each up.

Otherwise, can you make the case that 'any person' will have their health seriously affected if you are not put in the support, or work-related group.

JS477

One area of contention IMHO is what schrodie has highlighted that the wording on the ESA50 form with respect to using a wheelchair "if you usually use one" is contra to what the Atos HCPs are told to do at the WCA.

At the very least it could be argued that the wording in the ESA50 is misleading.

Boots888

rogerblack wrote: »

These descriptors are the law of the land.
They have been voted on and approved by parliament as appropriate tests.

They are arbitrary, and create unfairness. This is not actually illegal.

There is little way to challenge the actual wording of the descriptors in court.
Arguing this at a tribunal, or to the DWP will not do anything productive.

The only case this may be possible is if you find some inconsistency in the law or its implementation that means that you can apply for Judicial Review.

You need to understand the descriptors, and work out if you are covered by any.
(Do not neglect any because they are not your real problem - consider if a rational person who follows you around 24*7 could reasonably make a case for them)

If you are, then get as much evidence as you can to back each up.

Otherwise, can you make the case that 'any person' will have their health seriously affected if you are not put in the support, or work-related group.

There are many laws of the land, approved by parliament which are broken all the time by numerous people.

This is not a criminal hearing, why should the sick and disabled be made to not only feel like a criminal and a liar, but go through a similar process as those that are:eek:

Yes, have your tests but don't make it as "god fearing" for the most vulnerable in society:cool:

rogerblack

JS477 wrote: »

One area of contention IMHO is what schrodie has highlighted that the wording on the ESA50 form with respect to using a wheelchair "if you usually use one" is contra to what the Atos HCPs are told to do at the WCA.

At the very least it could be argued that the wording in the ESA50 is misleading.

This is very, very far from making the use of the imaginary wheelchair unlawful.

If there was any query as to the issue of the wording of the form, it would be argued by the DWP that the form is just part of the information used, and that other information from the medical and GP/... can allow them to make the decision.

rogerblack

Boots888 wrote: »

There are many laws of the land, approved by parliament which are broken all the time by numerous people.

If you want the states money, after they've said you are not entitled, you need to convince the state that your interpretation of their laws is incorrect.

The tribunals process is one way of doing this. There are limited other avenues of doing this.

Do I agree the process is perfect, or even close - no.

But simply arguing it's unfair doesn't actually result in them changing their decision, if your case does not meet any of the legal tests.

JS477

rogerblack wrote: »

This is very, very far from making the use of the imaginary wheelchair unlawful.

If there was any query as to the issue of the wording of the form, it would be argued by the DWP that the form is just part of the information used, and that other information from the medical and GP/... can allow them to make the decision.

Nobody is saying (at least I'm not) that the wording on the ESA50 form is illegal just a tad misleading given that the ESA50 is the formative part of the WCA especially when its responses can in some cases determine whether or not a person undergoes a WCA with Atos.

Whatever the feelings are on this matter as to its furtiveness it is well worth remembering that you can be/will be assessed as being able to use an imaginary wheelchair irrespective of whether you not usually use one. Hence to avoid falling into this trap it is important that on the ESA50 form in the relevant section which states "if you usually use one" you also mention that you cannot manually propel yourself >50m in a wheelchair due to condition you have.

Boots888

rogerblack wrote: »

If you want the states money, after they've said you are not entitled, you need to convince the state that your interpretation of their laws is incorrect.

So again, what differentiates this process of a right to appeal to the right to appeal against a criminal offence???

Not a lot

Criminals - unless proven innocent - will be jailed behind bars.

Benefit claiments - unless proven genuine - will feel they're guilty and stuck behind bars.

It comes down to having representation and how each "lawyer" interprets and presents that evidence to the judge.

It's been proven that those represented by qualified advocates will win their appeal. Not everyone has access to that help, whether by cuts in funding to CAB etc, or the ability to pay privately.

Boots888

rogerblack wrote: »

But simply arguing it's unfair doesn't actually result in them changing their decision, if your case does not meet any of the legal tests.

It is unfair though. If they are ignoring peoples evidence from doctors and consultants that know the applicants condition but accept the latest statement from any doctor/consultant that applicant has only met once and can be obtained by paying for it, it makes the whole test futile.

I could pay privately for help from a consultant obtaining a report.
I could pay privately for help in appealling a point of law.

If I don't have any money and CAB and other welfare rights aren't accessible to you cause they're more often than not underfunded and have full case loads, then you've already got less of a chance for getting what might be rightfully yours.

= no money, no security, no hope