ESA migration rejection appeal - "diary" as evidence?

Muttleythefrog

CompBunny wrote: »

"Reliably and repeatedly"...no way the majority of the time for some of them. Safely...well it depends what it is. I do hope that the advisor lady knows about this, she is really kind.

I have indeed had the ATOS medical. The assessor was friendly and kind but didn't seem to take into account that the physical examination was clearly exhausting me!

One has to hope advisors know what they're doing. Sometimes well meaning people can try to help and don't at all... indeed GPs in relation to ESA seem to be particular offenders by saying they'll support their patient's claim and go out of their way unfortunately to write something totally irrelevant to the descriptors. So do try to have in mind in all this the descriptors... if you feel the person helping you may not be focussed on them... then it might be time to prod them... 'which descriptors are we going to argue apply to me'. If the reply isn't a focussed one then the advisor may not be ideal. But to be honest they should know what they're doing. The 'reliably and repeatedly and safely' issue raised above for applying the descriptors will no doubt be pertinent to your case since you otherwise probably can perform tasks being tested for. The handbook for the WCA covers that matter when describing how descriptors should be applied. http://www.dwp.gov.uk/docs/wca-handbook.pdf

The ATOS HCP being nice. They seem to use whatever tactic they feel gets the claimant to give what they feel are useful answers. I found good cop/bad cop being used in mine..lol.. she found neither a particular good tactic as both simply escalated my paranoia that she was acting and that she wasn't who she claimed to be. Being nice will work with many people... and unfortunately many people report having had a nice experience at medical in terms of the HCP... and of course later find out the resulting report isn't as they'd expected. And of course conversely some people report nasty HCP who had all manner of failings and yet they produce a report that the claimant can at least generally agree with. This is why I tend to be reluctant when people come on saying 'the medical went fine.. the nurse was really nice'.. reluctant to say 'ah fantastic... you can stop worrying about it all now'..lol... I prefer to direct them to get copy of the medical report ASAP.

atrixblue.-MFR-.

i would not bother with a diary, holes can be picked a construed view can be brought upon it by anyone reading it.

i am a bit confused as to why you were gioven this advice, but all the same it seems advice differs from place to place depending on how that adviser takes on a tribunal themselfs perhaps a diary to this adviser is better because it give a variety of descriptors in wich to combat.

i prefure to advise to get the ESA85, get medical back up in way of reports, stick to one descriptor in the WCA handbook that apply to me, and focus solely on that when taking on a reconsidderation and then onto tribunal sticking to the one thing to make a it easy and simple for me to follow so everyone is on my level of thinking and i may be able to control much of the tribunal on the day by not letting them sidetrack or go into other lesser ailments i have.

DLA may apply to you.

being able to prepare a cooked main meal from fresh ingrediants, not microwaveable goods.

supervision when outdoors, limited driving means extra help in going to apointments.

help getting dressed. getting in and out of the bath.

princessdon

I am not normally pro posts like this but I'll make it anyway.

You are possibly one of the most honest posters I've came accross on a benefit thread asking re entitlement.

My honest opinion is that you need to look at DLA as I think that you underestimate your needs.

Poppie68

Im thinking maybe a little less detail.
You state Day 3 still recovering from shopping sunday, and then Day 4 still recovering from shopping Sunday but on Day 3 you had been out and about so surely thats why on Day 4 you are suffering?

Muttleythefrog

I tend to be more brain active at ridiculous hours of the night so I've returned for a rethink on this.

And my thinking is that a diary.. and certainly one of such detail would be a notable risk. Like atrix above I cannot comprehend from a tactical position why one would want to put such into evidence for an ESA claim when it opens up precisely the risks atrix suggests. Further I think because you describe so much activity that some quite inappropriate inferences may be drawn... a diary by its very nature details what you do.. and not what you don't do.. it may include some things you try to do and fail... but generally speaking i nday to day life people do not spend their time demonstrating things they cannot do by their daily activities.. in fact they do the exact opposite.. they avoid them. For a DLA claim this can fit quite nicely with the criteria.. because DLA tends to look at things which will or should form part of a person's day and therefore a diary will show how you struggle with the task or require someone else to help etc.

As above ironically I do feel you might be successful in a DLA claim. One day perhaps revisit that possibility... and a diary of this nature I would think could be effective. But for ESA I am hoping that this diary is used more as an aid to your advisor rather than as evidence. I tend to be very cautious in disagreeing with people who should know better than me about a matter... I do feel that a diary would be a risk regarding the WCA. So much could be interpreted from the above diary detail that all manner of conclusions could be drawn depending upon motivation of reader. I'm also conscious that the nature of your illness is such that being active is a problem... and the problem with a diary is it doesn't convey real time very well at all... it's like if you list the food you eat in a day and read it to someone the next then you'll sound like a greedy pig... when in fact you probably had quite an ordinary diet. With a diary there seems to be the inherent risk you'll appear to be quite active when emphasis for you in all likelihood is going to be that descriptors x, y, z apply because of inability to repeatedly do them reliably and safely.

That's my thinking anyway. I do wonder if when you meet advisor you mention what has been said here if they think your diary should be submitted as evidence. In fact... if it helps I wonder if you should print off some of the posting and say this is how people have responded. They may still feel diary useful and it may work with the argument they make for the descriptors applying that they feel do... in that sense they're in a stronger position to determine the risks and applicability of your diary content. It's also worth saying that tribunals are independent and therefore should be motivated by 'getting it right'... the risks of such a diary I think are lower with regard to a tribunal than the DWP.

There's one way to perhaps ultimately test the effect of the diary. When the descriptors that you are arguing apply to you in appeal case are established; then get as many people as possible to honestly read diary and see if they can find information that could be interpreted reasonably as contradicting the descriptors you're 'going for'... and also get them to note the things that support these descriptors. Remind them that in order for a descriptor to not apply then you must be unable to realiably and repeatedly (and safely) perform the task. So for example, imagine the mobility descriptors... if a person can mobilise 200m without discomfort, exhaustion and within reasonable timescale then none of the descriptors (mobility descriptors) would apply.. but if in mobilising 200m the person was likely to cause themselves a serious injury then for the purpose of the test they should be considered unable to perform it. If you carry out such a test on the diary with known descriptors then the risk/benefit can be assessed.

The DWP will first reconsider their decision when they get the appeal request. If they don't change minds then it all gets handed over to tribunals service to arrange appeal.

CompBunny

princessdon, that's very kind of you to say. I still wouldn't feel comfortable with claiming DLA though, although when this ESA stress is over with I will have a re-read of DLA information objectively. As atrix was saying about the meals, sometimes I can prepare a meal with fresh ingredients etc.

Muttley, thankyou for taking the time to share your unearthly hour (helpful) thinking! I must say I do agree with you thinking about it. I will raise these concerns with the advisor, I don't want to appear rude and ungrateful for her help but will be as polite as possible in approaching it. Your food analogy is a good one.

This whole thing feels like a silly game, if only we could just sit down with a fair decision maker and tell them in our own words exactly what we experience individually. That way they could make an informed decision (instead of based on people fearful of what they do and don't say) and maybe even come up with a realistic long term plan to actually help more able people into some sort of meaningful activity, whether that be limited work or helping the community! *vent over*

Thankyou so much for all of your advice. I really appreciate it and have taken as much on board as possible. I will now delete the personal information posted, hope you don't mind.

mazza111

Think you've hit the nail on the head there about the fairness. It's what I've said all along regarding the WCA. The added stress just doesn't help, especially with conditions like yours where stress can make matters worse. And yes, it feels like a silly game they are playing, they just seem to be so much better at it than us

CompBunny

Reconsideration rejected....next step, full on appeal and tribunal. Very scared and got a massive headache but my OH will be home from work soon to lift this whole horrible situation from my shoulders. Its going to be tough to find the physical and mental energy to fight this, but gotta find it from somewhere..