ESA Mobilising Descriptor?

schrodie

With respect to the ESA50 mobilising descriptor is this about mobilising indoors or outdoors or both?

Ta

rogerblack

Neither.
It's 'at work'.

Cannot either

mobilise more than 50 meters on level ground without stopping in order to avoid significant discomfort or exhaustion; or
repeatedly mobilise 50 meters within a reasonable timescale because of significant discomfort or exhaustion.

The way I read this is:
If you cannot mobilise 50m on level ground without stopping... then you are entitled.
If you cannot mobilise 50m on perhaps unlevel ground, including obstacles in a normal working environment, perhaps with stopping, in a 'reasonable' time, then you are entitled.

The ommision of 'level ground' can't simply be ignored.
Exactly what it means, in the absence of caselaw (which I'm not aware of) - would be up to the decisionmaker to determine.

It might not be an error of law to say that 'they can go 50m with rests, over 2cm thresholds, and carpet edges - this qualifies as 'not level ground', claimant not entitled'.
Utterly disregarding the effect of obstacles and unlevel ground when considering the second part of the descriptor may be an error, especially if there is evidence that it causes problems.

On the other hand.
You can't twist the law completely out of shape by posing ridiculous conditions.
For example - a substantial majority of people would be unable to mobilise 50m over a busy road, without stopping.

The descriptors are read as if applied to a workplace.



In both of the above cases, you need to be able to do the above with 'reasonable regularity' throughout the course of a working day.

ankspon

I don't see where work comes into it regarding descriptors

rogerblack

The framing of the act, and caselaw.
http://www.disabilityrightsuk.org/esalaw.htm

http://www.disabilityrightsuk.org/charlton.htm

Not going into more detail, due to migrane.

Cpt.Scarlet

The WCA Handbook that ATOS use as a reference guide for the ESA descriptors says

The modern working environment should allow for the use of a wheelchair and any other widely available aid and therefore the concept of mobilising within a workplace is considered the critical issue – rather than just the individual’s ability to walk around a workplace.

schrodie

But just before that paragraph it says in the Handbook

"This activity relates primarily to lower limb function. It is intended to reflect the level of mobility that a person would need in order to be able to move reasonably within and around an indoor environment. It is not intended to take into account transport to or from that environment."

So I guess it's indoors and not outdoors.

rogerblack

schrodie wrote: »

But just before that paragraph it says in the Handbook

"This activity relates primarily to lower limb function. It is intended to reflect the level of mobility that a person would need in order to be able to move reasonably within and around an indoor environment. It is not intended to take into account transport to or from that environment."

So I guess it's indoors and not outdoors.

The wca handbook has no legal force whatsoever, but is of course useful to know what atos's position is.

JS477

In that case it would be useful to know on what basis Atos has decided that its HCPs should concerning the ESA mobilising descriptor apply it to an indoor environment.

It does state at the beginning of the handbook:-

"This training has been produced as part of a training programme for Health Care Professionals approved or appointed by the Department for Work and Pensions Chief Medical Adviser to carry out benefit assessment work."

Maybe that's all the legal requirement is needs!

Perhaps this is one for the Atos Rep!!

rogerblack

JS477 wrote: »

In that case it would be useful to know on what basis Atos has decided that its HCPs should concerning the ESA mobilising descriptor apply it to an indoor environment.

It does state at the beginning of the handbook:-

"This training has been produced as part of a training programme for Health Care Professionals approved or appointed by the Department for Work and Pensions Chief Medical Adviser to carry out benefit assessment work."

Maybe that's all the legal requirement is needs!

Perhaps this is one for the Atos Rep!!

There is a vast difference between ATOS guidance, and what is the actual law.

ATOS guidance is just that. Guidance developed (perhaps in consultation with the DWP) for their assessors.
It will have been developed on the basis of the law, but they may well be picking the least claimant friendly position that they believe is likely not to result in too many challenges.
Similar with DWP internal guidance.

This has no more legal force than this post.

The law is the acts of parliament embodying ESA, caselaw which modifies it, and overarching legislation which affects that law.

DWP and ATOS internal documents are not law, unless the DWP or ATOS are specifically granted powers to make law in certain areas.

schrodie

rogerblack wrote: »

DWP and ATOS internal documents are not law, unless the DWP or ATOS are specifically granted powers to make law in certain areas.

And thereby lies the problem with this question. Much of disability legislation is enforced by Regulation made by the S of S; so concerning this matter this may well have already happened.

rogerblack

schrodie wrote: »

And thereby lies the problem with this question. Much of disability legislation is enforced by Regulation made by the S of S; so concerning this matter this may well have already happened.

This is generally only the case in extremely limited areas.
DWP guidance to decisionmakers, and ATOS guidance to HCPs have zero legal force.