ESA Limited Capability for Work Form

galaxystar_2

I receive incapacity benefit and have been sent a Limited Capability for Work Questionnaire. All my disabilities are physical, yet there are questions under the Mental, Cognitive and Intellectual Functions section (Part 2) relating to activities I cannot do physically but could do, if I was physically able to, from a mental perspective (which is what the question is after). If I tick the 'No Problems' box then this implies that I can do them.

Is this a trick? Any advice on how should I answer these as I feel I am losing out on "points" for saying I have no problems mentally doing tasks that I can't do physically!!!

rogerblack

If you feel you cannot do a descriptor, for whatever reason, then note it.

For example, under 'do you ever become violent or disturbed'( not the real entry) I put down details of how I'm affected by fatigue that causes me to act in ways which may match that.

Also note the descriptors. These are the legal tests, not the wording of the form,
[url]Http://www.dwp.gov.uk/docs/m-06-11.pdf[/url]
See also the 'decision makers guide' (Google) for how they are supposed to decise things,

rogerblack

The words on the esa50 have no legal force.
Only the above descriptors and surrounding case law,
The above approach is incorrect.
http://www.administrativeappeals.tribunals.gov.uk/aspx/view.aspx?id=3405 .
In brief, any cause of problems with the activities in the descriptors on the mental function may gain points.

sparkycat2

rogerblack wrote: »

The words on the esa50 have no legal force.
Only the above descriptors and surrounding case law,
The above approach is incorrect.
http://www.administrativeappeals.tribunals.gov.uk/aspx/view.aspx?id=3405 .
In brief, any cause of problems with the activities in the descriptors on the mental function may gain points.

I wonder how long before they change the regulations. I mean it appears to be the unintended consequence of poorly written regulations.

Cpt.Scarlet

sobiette wrote: »

The ESA50 is quite clear as to what Section 2 relates to:

Part2 – Me[FONT=Swiss 721 BT,Swiss][FONT=Swiss 721 BT,Swiss]ntal, [/FONT][/FONT]cognitive [FONT=Swiss 721 BT,Swiss][FONT=Swiss 721 BT,Swiss]and [/FONT][/FONT]intelle[FONT=Swiss 721 BT,Swiss][FONT=Swiss 721 BT,Swiss]ctual [/FONT][/FONT]functions [FONT=Swiss 721 BT,Swiss][FONT=Swiss 721 BT,Swiss]By [/FONT][/FONT][FONT=Swiss 721 BT,Swiss][FONT=Swiss 721 BT,Swiss]mental, [/FONT][/FONT][FONT=Swiss 72 1 BT,Swiss 72 1 BT][FONT=Swiss 72 1 BT,Swiss 72 1 BT]c[/FONT][/FONT][FONT=Swiss 721 BT,Swiss][FONT=Swiss 721 BT,Swiss]ognitive and [/FONT][/FONT][FONT=Swiss 72 1 BT,Swiss 72 1 BT][FONT=Swiss 72 1 BT,Swiss 72 1 BT]intellec[/FONT][/FONT][FONT=Swiss 721 BT,Swiss][FONT=Swiss 721 BT,Swiss]tual [/FONT][/FONT][FONT=Swiss 72 1 BT,Swiss 72 1 BT][FONT=Swiss 72 1 BT,Swiss 72 1 BT]functions [/FONT][/FONT][FONT=Swiss 721 BT,Swiss][FONT=Swiss 721 BT,Swiss]we [/FONT][/FONT][FONT=Swiss 72 1 BT,Swiss 72 1 BT][FONT=Swiss 72 1 BT,Swiss 72 1 BT]m[/FONT][/FONT][FONT=Swiss 721 BT,Swiss][FONT=Swiss 721 BT,Swiss]ean things [/FONT][/FONT][FONT=Swiss 72 1 BT,Swiss 72 1 BT][FONT=Swiss 72 1 BT,Swiss 72 1 BT]like m[/FONT][/FONT][FONT=Swiss 721 BT,Swiss][FONT=Swiss 721 BT,Swiss]ental illness, learning difficulties and the effects of head injuries. [/FONT][/FONT]
Attempting to show that you have a mental illness where there has been no diagnosis in order to try to increase the number of points is quite honestly an insult to those that suffer from such an illness.

ESA Case Law clearly states that there need not be a specific mental illness in order for a tribunal to consider mental health descriptors. See CE/2323/2010

snugglepet20

At the end of each question there is a box to put comments in. I would just leave it unticked and write in the comments something like 'I am capable of mentally knowing how to complete this task but cannot due to physical disabilities'.

rogerblack

sobiette wrote: »

You could argue, incorrectly in my opinion, that any physical illness creates that effect!

I get stressed after trying to cope with a physical illness, which makes me bad tempered and irritable leading to lack of concentration which could cause me to be a danger to myself or others. Is that right to claim that argument?

Should not part 2 be limited to only those that have a defined and diagnosed mental illness?

Absolutely not, on at least a couple of grounds.

Firstly, if you start out by what the law 'should' be, rather than what it is, you run into the prior problem that the descriptors as implemented are dramatically unfair on some people, and do not reflect their need for support, or their employability. My common examples are of someone unable to raise their arms above their head, but otherwise fit getting the support group, whereas someone in a wheelchair unable to talk to strangers much of the day, who has difficulty with more than short sentances, has incontinence once a month, and multiple other disabilities gets determined to be fit to work.

Secondly, you really believe that the medical profession is perfect, and fully understands all medical conditions, and that everyone is able to get a correct diagnosis within a couple of weeks of their condition?

xylophone

I would also raise a point on this. As a lay person, much like the rest of society, how would we know about this particular 'fiddle'?
We all can't be going through case law when completing the ESA50.

I am sure you could write the book?
https://forums.moneysavingexpert.com/discussion/4197031