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

benefitbaby

I am not sure if you are aware of this but if the tribunal find that they cannot award the necessary 15 points from the descriptors then the legislation requires that they consider regulation 29 of the ESA Regulations.

It is possible that you could argue that reg 29(2)(b) applies to you as a result of poor concentration, headaches, nodding off during the day etc.

Basically - and I am paraphrasing - they have to consider whether there would be a substantial risk to anyone's health (yours or someone else's) if you are found fit for work.

Whether any risk is substantial will depend on the nature of work that you could do (with consideration to your educational background and previous work experience) and also taking into account the journey to work.

Have a look at Charlton -v- SSWP which is directly applicable to ESA and the leading case that is quoted in the social security legislative volumes that the tribunal refer to.

GlasweJen

Have a look at this OP
http://emedicine.medscape.com/article/304967-treatment

It gives you a bit of information on bipap vs cpap.

I get DLA on the grounds of altered conciousness but I literally lose conciousness and collapse without warning. They only awarded DLA when every consultant going had poked and prodded and prescribed regimes that didn't work so I'm not too positive on your outlook for this tribunal.

You might want to look at prophylactic treatment for the headaches, I'm on amytriptilyne for migraine prophylaxis and it does help along side propranolol and topped up with pain killers when the pain breaks through. Before I started on prevention the headaches were literally crippling.

I'd have a good chat with your specialists because someone should have came up with something by now, sure you might need some adaptions for work but it shouldn't be out of reach for you.

jasonwatkins

pickpocketlocket wrote: »

This is the kind of thing you need to focus on, does your medical evidence document these headaches?

i know for a fact that i've reported the headaches to the brompton hospital before when i've been to my various appointments. i will have to review my paperwork to see if i actually mentioned it in my initial medical. i may well have forgotten due to, ironically, being extremely tired (something which the assessor 'helpfully' pointed out when I read the documentation ).

pickpocketlocket wrote: »

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

Thankyou. I'm certainly feeling slightly more positive about it than I was at the weekend ..

benefitbaby wrote: »

I am not sure if you are aware of this but if the tribunal find that they cannot award the necessary 15 points from the descriptors then the legislation requires that they consider regulation 29 of the ESA Regulations.

It is possible that you could argue that reg 29(2)(b) applies to you as a result of poor concentration, headaches, nodding off during the day etc.

Basically - and I am paraphrasing - they have to consider whether there would be a substantial risk to anyone's health (yours or someone else's) if you are found fit for work.

Whether any risk is substantial will depend on the nature of work that you could do (with consideration to your educational background and previous work experience) and also taking into account the journey to work.

Have a look at Charlton -v- SSWP which is directly applicable to ESA and the leading case that is quoted in the social security legislative volumes that the tribunal refer to.

Thanks for that, very useful. Would this link be the Charlton -v- SSWP case you're referring to ?

(Not that legalese makes a whole lot of sense to me as it is )

I suppose the one thing that could potentially let me down in respect of a 'substantial risk' is that my only real previous experience of employment is that i worked as a computer programmer which might negate the argument that there would be a "substantial risk".

I could, of course, give you a list as long as my arm (and longer..) of the times i've fallen asleep at my desk in the middle of doing things. Or the time I was in a meeting with someone and actually started to doze while he was actually talking to me .. as well as the number of times i've been late due to missing my stop on the train because i'm asleep.

And the fact that i've been sacked twice for falling asleep on the job.

But maybe in the literal sense, sitting at a computer desk may not necessarily be seen as a "substantial risk" I suppose.

GlasweJen wrote: »

I'd have a good chat with your specialists because someone should have came up with something by now, sure you might need some adaptions for work but it shouldn't be out of reach for you.

Thanks. I suppose a large part of the reason it's taken as long as it has is that they only seem to be able to see me for sleep studies and appointments no more than a few times a year.

benefitbaby

jasonwatkins wrote: »

Thanks for that, very useful. Would this link be the Charlton -v- SSWP case you're referring to ?

(Not that legalese makes a whole lot of sense to me as it is )

That is a link, but not a great one... For a better overview see the disability alliance overview which has a link to the full decision and guidance (sorry I can't do links). The relevant paragraphs are 24-36.

jasonwatkins

benefitbaby wrote: »

That is a link, but not a great one... For a better overview see the disability alliance overview which has a link to the full decision and guidance (sorry I can't do links). The relevant paragraphs are 24-36.

Thanks, i'll have a look.

jasonwatkins

I should have secured the letter that I've been chasing. Just spoken to a consultant at the Royal Brompton Hospital who has agreed to dictate a letter that will (hopefully) be typed up today and will confirm that the problems experienced during the daytime are fundamentally part of the condition as a whole.

He was also quite surprised at the tribunal's interpretation of "natural daytime tiredness" and said that the tiredness experienced by Sleep Apnoea sufferers is more Pathological than 'natural'.

He also made a good point that the DVLA consider Sleep Apnoea to be "uncontrollable" to the extent that it significantly impairs your ability to drive to the point of automatic disqualification, something which has happened with me, and I have a letter to confirm as well.

So while i'm still not expecting much, I think it's at least given me hope I might have a chance ..

jasonwatkins

Just wanted to pop back to this thread and say a huge thankyou to everyone for all of your help and advice.

I had my tribunal hearing this morning and I was successful

Actually, so much so, that the judge actually chased me, my mum and my sister down the corridor to the lifts not 2 minutes after we'd left the room to tell me i'd won my case !.

Obviously there's going to be that slight nagging worry until I actually get it in writing, but I certainly don't doubt that it should be fine.

Muttleythefrog

jasonwatkins wrote: »

Just wanted to pop back to this thread and say a huge thankyou to everyone for all of your help and advice.

I had my tribunal hearing this morning and I was successful

Actually, so much so, that the judge actually chased me, my mum and my sister down the corridor to the lifts not 2 minutes after we'd left the room to tell me i'd won my case !.

Obviously there's going to be that slight nagging worry until I actually get it in writing, but I certainly don't doubt that it should be fine.

Great to hear Jason. I would expect the decision notice within the next week... they're usually pretty swift with admin. The same sadly can't be said of the DWP who will also get sent the decision and take probably a fair time to process it... so continue sending sick notes if you've been doing that... until DWP finally do process result.

As there was technical interest in your particular condition and the descriptors... it could be helpful to know what descriptors the tribunal decided apply to you.

atrixblue.-MFR-.

i agree with muttley in that i would benefit others with the same condition if you grace us with the relevant descriptor you matched.

jasonwatkins

Thanks folks

As soon as I get the relevant paperwork then i'll certainly be back to let you know where I was awarded the points. If it can help other people in the same situation as me then I'm only too happy to share.