Placed in ESA work group without a WCA-but feel I should be in support.

johnsmi

Hello folks,

I would be very grateful for some advice as I have just got a letter stating that I have been placed in WRAG of esa without having to go through the ordeal of an atos medical. I did send in a very detailed esa50 and supporting doctors letters.

I do feel because of the social phobia condition that I suffer from and the distress caused if I am ever placed in a social situation (that I will usually try to avoid at all costs) that I should appeal to be considered for the support group as this is one of the descriptors for it.

As it stands I would loose the ESA after a year because of savings.

Am I right in thinking

1 If I appeal using form GL24 and supporting letter that because I have already been placed in wrag that atos will not call me for a medical on this occasion, and that it is purely up to the decision maker to reconsider the decision, prior to any tribunal?

2 when reading the social engagement descriptor for support group eligibility it states

"Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual"

Does that mean that a claimant will only fall within the above descriptor if for example is never able to go to dentist, doctor speak to neighbours, or simply that doing so will cause a lot of distress to the claimant?

I do understand that should the decision maker uphold the existing decision and If I want to take it to the tribunal that it can go either way including losing the wrag.

Thank you all very much for all the advice and the great support of this forum.

John

Torry_Quine

If you appeal then your claim will be reconsidered and if the decision remains the same it will go to a tribunal.

Remember you only have a month to put in your appeal.

benefitbaby

CSE/22/2013 — Correct approach to applying ‘coping with social engagement’ descriptor and ‘substantial risk’ provision for ESA support group


[2013] UKUT 152 (AAC)

Background

The claimant suffered with severe anxiety and depression which made him very reclusive. It was determined that he had limited capability for work without the need for an examination by a health care professional for the purposes of his claim to employment and support allowance (ESA), but that he did not satisfy any of the descriptors in schedule 3 to the Employment and Support Regulations 2008 to allow him to be placed into the support group.

The claimant’s appeal was dismissed by a tribunal who decided that neither descriptor 13 of schedule 3 (social engagement), nor regulation 35(2) (substantial risk to health if claimant found not to have limited capability for work-related activity) applied. He appealed to the Upper Tribunal.

Issues before the Upper Tribunal

Was the tribunal’s decision erroneous in law in relation to their application of descriptor 13 and regulation 35(2)?

Decision

Judge Parker decided that the tribunal’s reasoning was erroneous in law and set aside their decision. The appeal was remitted for rehearing by a new tribunal.

Reasons

Regulation 34(2) states that a descriptor applies if it applies for the majority of the time, or on the majority of occasions the claimant attempts to undertake the relevant activity. Descriptor 13 applies if engagement in social contact ‘is always precluded’. The tribunal held that the descriptor did not apply because the claimant had dealt with a health care professional and was able to attend his GP’s surgery and the tribunal hearing. They also decided that regulation 35(2) did not apply because he was able to cope with a work-related interview at the Jobcentre.

The Judge held that the tribunal’s approach was flawed. She made the following points in relation to the correct application of the regulations in this case -

• Descriptor 13 of schedule 3 was identical to descriptor 16(a) of schedule 2 and the decision-maker and tribunal should have made clear whether the claimant satisfied the latter, or had been awarded points under other descriptors.
• There was a tension between the wording of regulation 34(2) and descriptor 13 of schedule 3. The Judge rejected the submission of the Secretary of State that the wording of the latter precluded the application of the former. With reference to the dictionary definition of the word , ’always’, he held that in the context of the descriptor it meant ‘repeatedly’, ‘persistently’ or ‘often’, rather than ‘at all times’. The reference to ‘majority’ in regulation 34(2) had to be construed to take account of this. It therefore required a greater frequency than 50.1% but it was for a fact-finding tribunal to determine whether the required frequency was reached in any particular case, applying the rules in a common sense way.
• The Judge held that ‘social engagement’ for the purposes of Activity 13 of schedule 3 included both informal and formal engagement (e.g. with professionals, including doctors and tribunal members).
• The tribunal’s reasoning in this case in relation to descriptor 13 was flawed because the claimant had not, in fact, seen a health care professional and his GP had confirmed that he was rarely able to attend his surgery (although his attendance and participation in the hearing did constitute social contact or engagement).

Commissioner / Judge: Parker

Date of decision: 26 February, 2013

johnsmi

Thank you both very much for replies.

My social phobia is such that I don't have a social life and feel very distressed if having to be present in a situation where I have to intereact with other people, even people that I know well.

I sweat heavily tremble and feel humiliated and even feel suicidal afterwards for letting myself down, and these feelings can last for weeks afterwards.

I can though visit my GP dentist and do shopping usually as I feel very little personal interaction is taking place and my Gp is not out to judge me.

So on the basis of this and the judgement set out in the last post (which I thank you very much for) I would really appreciate your advice if you think there is any point appealing.

I suppose I could let it get to the decision maker re-consideration stage.

Thanks again for all your help.

John

bloolagoon

You do yourself no favours referring to loss of benefits due to savings. Concentrate on your illness not money as it distracts greatly and could give the opinion that the capacity to work is secondary and contrived. It's not relevant to anyone.

Parva

And the fact that he openly admits that he can do shopping amongst lots of people yet is going to have suicidal tendencies if he has to speak to a medical representative other than his own doctor. And as for the money situation.... Are you seriously telling us that you can barely peek out of the living room curtains but doing a shop with 100's of other people and interacting with the cashiers in the shops is no problem at all?

I would enjoy the WRAG whilst you have it and keep it very quiet if I were you.

93123

Parva wrote: »

And the fact that he openly admits that he can do shopping amongst lots of people yet is going to have suicidal tendencies if he has to speak to a medical representative other than his own doctor. And as for the money situation.... Are you seriously telling us that you can barely peek out of the living room curtains but doing a shop with 100's of other people and interacting with the cashiers in the shops is no problem at all?

I would enjoy the WRAG whilst you have it and keep it very quiet if I were you.

I don't think that's fair. Everyone's doing their own thing when shopping, it involves no personal interaction. A few words at the cashier, if any, hardly constitutes real interaction. Mental health problems aren't black and white. It's not a case of "I can never do this and I can always do that"... it varies. It doesn't mean they're lying.

No wonder people don't like talking about mental health problems if every point and symptom is analysed... We all have days where we can cope better and situations which may seem like they'd upset someone with social anxiety might actually not, and a situation which seems like it would be fine for them might not be... Can't put everyone in the same box.

E.g. me - I don't have it to the level of panic attacks but most days I refuse to leave the house because it exhausts me and makes me feel flustered, anxious etc, but on occasion for some reason I feel able to cope more and can be more productive that day, but will hide away for days after because the few hours of being out once drained me. And strangely, I can go into the crowded city and kind of cope but if I have to go to my small local town with little crowds I'll come home as soon as possible and will feel anxious around the people there, but not in the city (as much...). Weird yes but not dishonest or faking anything.

johnsmi

I thank all the people on here for their replies, even the ones who seem not to understand how the social phobia which I consider to have a have a devastating effect on my life and which I have to accept will be always with me (with lots of treatment and ongoing medication) affects me.

The simple fact is the better I feel people get to know me the more nervous I get of them and once I have a panic attack with people and feel humiliated for doing so I am extremely nervous of that person again in general am very nervous and mistrusting of most people.

I have come on here for some advice and have been very honest about my mental health and don't understand why some people can feel I am less than genuine, why should I?

But I understand that it is the internet and because I have posted some may take a different view.

Now I am sorry that I have even posted looking for advice atall and that some posters who I had considered would be helpful have in my eyes turned against me.

Parva I feel you didn't read my post right what I said was,

"My social phobia is such that I don't have a social life and feel very distressed if having to be present in a situation where I have to intereact with other people, even people that I know well.

I sweat heavily tremble and feel humiliated and even feel suicidal afterwards for letting myself down, and these feelings can last for weeks afterwards."

But if you feel you want to attack me for some reason I can do nothing about it.

Thanks for reading this.
John

joyfull

John,

Hang on in there. Many many people will have read your story and have no doubt of your authenticity and awful struggles you have. I'm constantly astounded at how some people always suspect ones motives on this forum and before you know it, youre on the back foot trying to defend yourself when theres nothing to defend!

There are people who heard you and appreciated your openness and honesty.

Wishing you well.

johnsmi

Thank you for your encouraging words Joyful and to the others for their positive replies, even the ones that seemed not to understand my social phobia I thank you too, for this gives me an indication of what others on a tribunal may also be thinking and helps me decide whether to appeal to be put into support group or not.

I might add that the social phobia aspect is only part of what enabled me to get into the wrag, I have other physical disabilities as well, but because my post alluded to the descriptors for the support group it wasn't appropriate to mention them as they didn't apply in this regard.

I feel myself lucky and count my blessings as there are a lot of other worse off than me and thank the people on this forum for all the help.

I only thought that it would be helpful to me to post as I would have to put in an appeal within a mth, as I have seen before others being asked "why did you wait so long to put in your appeal"

Thanks once again to all for your insight and help

John

Errata

Appeal - you've nothing to lose. If you don't appeal it appears your social phobia would prevent you from ever participating in a WRAG group, and that's a whole new ballgame.