ESA appeal tribunal in two weeks .. have a few questions ..

pickpocketlocket

It would be worth submitting the evidence, but as the quoted decision is from the Upper Tribunal, in order for the first tier tribunal to go against it you would need to differentiate from it, not simply state that it is wrong. Personally, I feel that the reasoning given by the UT is logical, but that is not to say that another UT would make a different ruling.

jasonwatkins

It might be logical, but it's medically inaccurate. Surely that must hold some weight ?

Adereterial

jasonwatkins wrote: »

Obviously that decision may well be out of my hands if I don't get the letter in time, but if I do, I would obviously want to "use" it in the most effective way so would it be better to kind of keep it in reserve for the point where i'm told that it's nothing more than "natural tiredness" so I can then say "Well actually, I received this letter just this morning that says that's not actually accurate .." ??.

Deliberately attempting to play the Tribunal and DWP is not recommended. If you have additional evidence at the hearing you would be advised to give it to them immediately you arrive. Attempting to make them look like idiots will not be welcomed and will not do you any favours.

In fact, if you have additional evidence you should send it in advance of the hearing if possible. DWP has the right and responsibility to consider and respond to all evidence presented in the appeal just as you have the right and responsibility to consider and respond to any evidence they choose to present. They will be copied in on any communication you send to the Tribunal.

In short, you should submit any additional evidence as soon as it arrives or, if it is not possible to do so in advance of the hearing, pass it to the clerk of the court when you arrive for the hearing. Holding on to it for the most opportune moment is likely to backfire.

rogerblack

jasonwatkins wrote: »

It might be logical, but it's medically inaccurate. Surely that must hold some weight ?

It is arguably medically accurate, if you start from the position of the exact wording of descriptor.

The descriptor is 'Consciousness during waking moments'
"At least once a (interval), has an involuntary episode of lost or altered consciousness resulting in significantly disrupted awareness or concentration"

It is a reasonable reading of that descriptor that Sleep Apnoea cannot ever qualify you due to its effect on your sleep, because you are not awake.
Similarly, it's problematic to try to read falling asleep 'normally' even if you do it during the day as being an 'involuntary episode during a waking moment' - so again it can't qualify.

The 'involuntary episode' of lost or altered consciousness would be falling asleep.
You can't fall asleep during a waking moment, as you are no longer in a waking moment when you fall asleep.

Is this 'fair' - not really relevant.
Some epileptics who would qualify are less disabled by their condition than people with sleep apnoea - who would not.

The way the law is written would seem to exclude people with sleep apnoea from it.

Is it worth raising the argument at the tribunal, in the hopes they are in ignorance of the above case - perhaps.
But you need to be looking for other descriptors that may apply, and reasons the judgement above does not apply.
For example, it seems to leave it open to argument that periods of extreme tiredness and fatigue brought on by the lack of sleep due to the condition, that do not result in falling asleep, but result in 'significantly disrupted concnetration' might count.

pickpocketlocket

jasonwatkins wrote: »

It might be logical, but it's medically inaccurate. Surely that must hold some weight ?

I agree with rogerblack on this, it is a question of legal interpretation not medical opinion (and it is only an opinion), and as such the UT's reasoning is sound. Consider it in the following way:

Sleep apnoea causes you to be tired, so the tiredness is directly related to the SA. Being tired causes you to lack concentration, be forgetful etc, so the tiredness is an intervening act, breaking the chain of causation, and hence the decision that the SA does not directly cause your daytime problems.

I would be looking at how you meet the other descriptors, that might be more open to interpretation.

GlasweJen

OP have you tried a bi-pap machine? They are much easier to tolerate than a c-pap but I'm not sure if they are suitable for sleep apnea. My friend switched from a c-pap to bi-pap but she has a muscle wasting disease.

jasonwatkins

Adereterial wrote: »

In short, you should submit any additional evidence as soon as it arrives or, if it is not possible to do so in advance of the hearing, pass it to the clerk of the court when you arrive for the hearing. Holding on to it for the most opportune moment is likely to backfire.

Fair enough, I'll do just that if the letter doesn't arrive in time to officially submit through the post. Thankyou.

pickpocketlocket wrote: »

Sleep apnoea causes you to be tired, so the tiredness is directly related to the SA. Being tired causes you to lack concentration, be forgetful etc, so the tiredness is an intervening act, breaking the chain of causation, and hence the decision that the SA does not directlycause your daytime problems

I understand what you're saying and it is indeed a fair point, but my belief is that the "chain", if you will, is what defines Sleep Apnoea as a whole. The interrupted sleep causes the tiredness and fatigue which causes the daytime problems. The daytime problems would not exist without the interrupted sleep.

To simply dismiss the daytime problems as "natural tiredness" that can be "controlled" is factually and medically incorrect IMO.

No mention is also given to the fact that Sleep Apnoea can, amongst other things, cause severe headaches during the morning due to the level of oxygen saturation during sleep - something I also have to contend with many times. I was completely wiped out just yesterday morning from about 9am to 1pm due to the severity of the headache I was suffering, and that's with a few doses of Ibuprofen.

This, in itself, almost bypasses the tiredness 'break' because it often happens before I've even gotten out of bed.

I must thank you and everyone else for taking the time to reply though. It's been very helpful and useful information.

GlasweJen wrote: »

OP have you tried a bi-pap machine? They are much easier to tolerate than a c-pap but I'm not sure if they are suitable for sleep apnea. My friend switched from a c-pap to bi-pap but she has a muscle wasting disease.

I've never heard of a bi-pap machine. I'll have to bring it up at my next appointment to see if it's a possibility. Thankyou

pickpocketlocket

jasonwatkins wrote: »

No mention is also given to the fact that Sleep Apnoea can, amongst other things, cause severe headaches during the morning due to the level of oxygen saturation during sleep - something I also have to contend with many times. I was completely wiped out just yesterday morning from about 9am to 1pm due to the severity of the headache I was suffering, and that's with a few doses of Ibuprofen.

This is the kind of thing you need to focus on, does your medical evidence document these headaches? This may not have been brought up in the previous case because their reasoning would have been based upon the claimant's condition, not SA in general. Perhaps the previous claimant focused on the tiredness too much?

In fact, if your appeal does fail because they focus on the previous judgment, you could appeal to the UT if you felt that it was applied incorrectly, in that the previous claimant presented different symptoms to you. Of course you would need to tailor your current appeal to highlight the differences, without referring to the case directly.

I don't think that your appeal is a lost cause, but rather than you need to take a different approach. Best of luck.

princessdon

Op just to give you an "alternative and none relevant view point"

I don't have SA - No idea what it is at all!

But I sleep little (due to other medical issues) and so am often tired, down, irrititable, get cluster headaches due to lack of sleep etc.

I am able to work - I wouldn't expect ESA

your condition is different - It isn't general tiredness or lack of sleep - concentrate on those issues as many people have "lack of sleep" and it's subsequent issues - You are different to that generic "I am tired"

Owain_Moneysaver

jasonwatkins wrote: »

Fair enough, I'll do just that if the letter doesn't arrive in time to officially submit through the post.

When you arrive at the Tribunal the receptionist or clerk will probably ask you if you have brought any documents etc for the Tribunal.

If possible, you should take 4 copies (one for each of the bench and one for the file copy) together with a copy for your own reference.