ESA50 - "Can you set an alarm clock.."

Richie-from-the-Boro

Brassedoff wrote: »

You are back in the realms of the virtual wheelchair should you point out they cannot do it with crutches.

Irrespective of the questions and descriptors, you may be able to walk 80 metres with crutches. You may be completely wiped out for the rest of the day for doing so. This means you must also point out the after effects and your "useless state" for the given period following it. You then need to follow that through on the linking questions.

At the same time point out the consciences of doing a task. For example, I may be able to stand at a work bench for a few minutes to fulfill the descriptors, I would then point out that I would need to hold both handles with both hands in order to stand. I would then say I have to sit within a prescribed period, but then point out I would/would not need assistance to complete that task. Give it five minutes and repeat the process in reverse.

I have pointed out that I can stand with the use of crutches.
I cannot use my hands for anything other than holding on to my crutches. I would have to sit in a unreasonably short period and would need assistance in order to do it safely.
I have pointed out that I need help in reverse.
I would then write verbatum the manufacturers and OT's instructions in the safe use of the same.
I would then tell them of any side effects my medication has
I would then write verbatum the manufacturers and OT's instructions in the safe use of the medication I was on if taking it.
I would then point out the points of the Health & Safety at work act. Highlighting the issues any prospective employer would be duty bound to take into account and make reasonable adjustments for. This would be for the consumption of both the DWP and repeat it to any pathway advisor if put into the WRAG.

All that for just one question. Repeat the process for the following ones too.

Please only put the truth down and how it affects the claimant as the trainers and shadow advisors I have been with all say it is just a war of attrition.

This is what, regardless of what you write, the HCP and the DWP are trained to use for interpretation.

Reference Braased's first line : You are back in the realms of the virtual wheelchair, its also worth pointing out that there is also a 'virtual / non-virtual staircase' that is only two steps high ! [ Descriptor : W(b) Cannot mount or descend two steps unaided by another person even with the support of a handrail. ]

Descriptor W(b) also reflects a severe limitation of stair climbing. This may be affected by severe lower limb pathology or breathlessness. It should be noted that the descriptor indicates inability to perform this task even if holding on to a handrail(s). Therefore the individual's abilities must be considered within the context of a handrail being present. This activity reflects a test of walking up or down 2 steps, not of whether one hand or two hands is needed for support while doing so. Therefore a person who can manage the two steps with support of two handrails would be considered as capable of performing this activity.

Within the descriptors – the concept of repeatedly and reliably is explicit. If the person could not repeat the activity within a reasonable time then they should be considered incapable of this task. The effects of fatigue must be considered.

NOTE01 : The bold is my edit bold.
NOTE02 : Remember how you arrived there at the interview, how you walked / mobilised from the car / climbed steps / carried a handbag / opened a lever or knob door
NOTE03 : Remember, if you can not repeat the activity within a reasonable time you should be considered incapable of this task.

Richie-from-the-Boro

Ellejmorgan wrote: »

Fantastic post and well described, this will help when I submit my next claim, one of the issues I have is a cervical disc prolapse, I am not sure where to start with the claim..
You are always so helpful, thank you

- deleted by myself, I'm applying my own reconsideration of the content
- I may put it back later verbatim
- I may put it back later verbatim with edit or codicils

Cpt.Scarlet

Richie

You need to be careful referencing Case Law without also looking at the current ESA descriptors to see if it is still relevant.

The case you quote applies to the old ESA descriptors. The "picking up and moving" test no longer includes the phrase "with either hand" and the "manual dexterity" test no longer includes pouring from a carton.

Richie-from-the-Boro

Cpt.Scarlet wrote: »

Richie

You need to be careful referencing Case Law without also looking at the current ESA descriptors to see if it is still relevant.

The case you quote applies to the old ESA descriptors. The "picking up and moving" test no longer includes the phrase "with either hand" and the "manual dexterity" test no longer includes pouring from a carton.

- thanks, I'll have a~n~other look, and if I'm wrong I'll come back here and say so - as always !
- I make the provisional observation that many of the cases being dealt with at this time are indeed 'tested' on the old descriptors having been in the appeal chain for 6 months or more.

rogerblack

Richie-from-the-Boro wrote: »

- thanks, I'll have a~n~other look, and if I'm wrong I'll come back here and say so - as always !
- I make the provisional observation that many of the cases being dealt with at this time are indeed 'tested' on the old descriptors having been in the appeal chain for 6 months or more.

I doubt that it's many.
The new descriptors apply to anyone who had an ESA50 with the new descriptors on.
This will have applied after March 28th 2011.
They will have had the decision around August 2011.
The appeal process is taking lots less time than it was, and is fortunately well under a year now, for nearly all cases.

I note as an aside that I'm perhaps fortunate, but I have an appeal on Tuedsay, for a medical conducted 27th Feb this year. (this post is partially motivated to avoid working on the document I mean to submit more fully explaining my case, which unfortunately has not yet been sent)

http://www.justice.gov.uk/downloads/statistics/tribs-stats/quarterly-tribs-q4-2011-12.pdf

Says that around 90% of cases will be cleared at one year from the decision - assuming that it takes 3 months for the DWP to forward the case to the tribunal.

Certainly - some cases may be taking this long, and perhaps the majority of cases to the upper tribunal will still be using the old descriptors.
Most won't though.

On a more general point.
Caselaw may apply to some degree, though the words change in minor ways.
If the law has removed 'either hand' - for example from a descriptor - and those words were not relevant to the case, the caselaw may still apply.

Richie-from-the-Boro

Ta Cpt.Scarlet & rogerblack. I'm off to watch the match, the stuff I posted was UT so :

- 1st claim month / year start
- lose
- re claim
- appeal trib
- lose
- appeal UT

If you see where I was coming from date-wise on descriptors 'at the time' of being turned down.

Cpt.Scarlet

Richie

If you or anyone else is appealing an ESA decision made using the old descriptors, then of course the Case Law still applies, there are also circumstances where Case Law for the old descriptors can still apply to the new descriptors, where there has been no substanstantive change to the wording.

However, this thread is from someone filling in the current ESA50 questionnaire, as are the questions being raised by other members.

Richie-from-the-Boro

rogerblack wrote: »

I doubt that it's many.
The new descriptors apply to anyone who had an ESA50 with the new descriptors on.
This will have applied after March 28th 2011.
They will have had the decision around August 2011.
The appeal process is taking lots less time than it was, and is fortunately well under a year now, for nearly all cases.

I note as an aside that I'm perhaps fortunate, but I have an appeal on Tuedsay, for a medical conducted 27th Feb this year. (this post is partially motivated to avoid working on the document I mean to submit more fully explaining my case, which unfortunately has not yet been sent)

http://www.justice.gov.uk/downloads/statistics/tribs-stats/quarterly-tribs-q4-2011-12.pdf

Says that around 90% of cases will be cleared at one year from the decision - assuming that it takes 3 months for the DWP to forward the case to the tribunal.

Certainly - some cases may be taking this long, and perhaps the majority of cases to the upper tribunal will still be using the old descriptors.
Most won't though.

On a more general point.
Caselaw may apply to some degree, though the words change in minor ways.
If the law has removed 'either hand' - for example from a descriptor - and those words were not relevant to the case, the caselaw may still apply.

""The appeal process is taking lots less time than it was, and is fortunately well under a year now, for nearly all cases""

Indeed it is, the illegal tactic the JC+ usually use of contacting ESA claimants by telephone with the usual“ Following your medical you have scored 0 points, so we are closing your claim and you now have to claim JSA instead and sign on” is designed to - and succeeding in reducing / slowing down appeal applications.

The law is clear - any appealable decisions must be put in writing with all options clearly stated. Clearly this is a decision which is not in writing, and not by accident - but by design.