re: Work capability assessment, I scored 0 points.

Iwanttobefree

Continuing on from the thread that was closed for some reason here

https://forums.moneysavingexpert.com/discussion/5665482/work-capability-assessment-i-scored-0-points

I had a few days of clarity and decided to appeal to the upper tribunal off of my own back.

I sent them a long letter detaining why I thought each part of the tribunals response broke the law.

Each point the judge said, I used one of the following to refute it's legal merit (I got this from another site, but have since had to reformat PC and cant remember which site it was), this is from the first page of my letter

Dear sir/madam

I am appealing to the Upper Tribunal against the decision made on 7th February 2018 by Judge xxxx and Dr xxxxxx for a number of reasons.

I have researched this online to the best of my ability to see whether I have grounds to appeal, but I am no lawyer.

I have read the grounds on which people usually successfully appeal these cases, and I strongly believe my case agrees with a number of them.

1) Making a decision that is not supported by the evidence – for example where the FTT ignored or overlooked evidence, misinterpreted evidence, took into account irrelevant evidence or made a decision that does not follow logically from the evidence.


2) (Some of my points fall into both 1 and 2) Making incorrect factual findings – To make a decision the FTT must decide what the facts are and not take into account irrelevant facts


3) Breach of ‘the rules natural justice – This includes failing to follow FTT procedure, for example failing to give parties 14 days’ notice of an oral appeal hearing or failing to inform parties that it intends to take into account a matter not addressed in the appeal papers or during the hearing. It also includes failure to follow the procedural rules for all judicial process, for example bias or not allowing a party to speak


4) Giving inadequate reasons – The FTT must explain its decision: it must explain how the evidence established the facts and why the facts made it apply the law in the way it did.


5) Making a decision that is ‘perverse’ – where the FTT acted irrationally and in a way that no reasonable FTT, given the relevant law and the evidence before it and the findings of fact, could have come to the decision that it did.

I received a reply from the Upper Tribunal saying,

The Appellant's grounds of appeal are (frankly) unnecessarily long. It is therefore unrealistic to address each point individually, especially as several of the grounds are (perhaps understandably enough) little more than an attempt to re-argue the case on it's factual merits. I do not expect the secretary of State's representative to deal with each and every point whew filing her response. However, I am giving permission to appeal to the Upper Tribunal primarily for the following reasons

He then lists five reasons and asks for the secretary of state to comment.

The secretary of state agreed with all 5 reasons, I did too, hence have won the appeal.

Here's part of the winning letter stating about my new tribunal.

The following directions apply to the hearing:
The appeal should be considered at an oral hearing

The new First-tier Tribunal should not involve the tribunal judge or medical member previously involved in considering this appeal on 9 February 2018

The secretary of state's representative is directed to produce a supplementary submission for the new First-tier Tribunal providing details of the Applicants ESA claim history from and including 30th April 2013, along with any relevant documentary evidence that may still be available. This supplementary submission should be sent to the HMCTS regional office in Birmingham within one month of this letter.

The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of facts it makes, the new tribunal may reach the same or a different outcome to the previous tribunal

Here's part of the letter giving the reasons they allowed the appeal

As regard activity 1 (mobilising), it is arguable that the First-tier Tribunal (FTT) omitted to consider the specific wordings and descriptors or to make sufficient findings of fact in relation to them. The FTT may have neglected to have regard to the dual nature of the statutory tests in activity 1; i.e. asking, first if the claimant can do something once and, secondly whether he can do it repeatedly...within a reasonable timescale. Likewise there is arguably insufficient consideration of any discomfort or exhaustion that the claimant might experience.

As regard activity 16 (social engagement), the Appellant submits that the FTT was wrong to find that he engages and attends social events. It is arguable the FTT considered that the Appellant attends places where other people were present but then did not then go on to question what (if any) social engagement he had with them. Again the FTT does not seem to have placed any focus on the wordings of the activities and descriptors. See further AH v SSWP (ESA) [2013] UKUT 118 (AAC) where the UT judge Jacobs held. "The tribunal failed to make findings of fact on the terms of the Activity with sufficient detail to show whether or not it applied to [20]... first point is on the importance of focusing wording of the relevant activity and descriptor when considering the reasonable regularity principle" [26]

As regard activity 17 (appropriateness of behavior), the FTT seem to consider that the appellant was generally in control of his behavior while acknowledging some incidents. However, there does not seem to be any specific consideration of descriptor 17(c). This may be symptomatic of a general tendency on the part of the FTT to mix narration of evidence with findings of fact, without always making the latter sufficiently explicit.

As regards regulation 29, the FTT found there was no evidence to indicate the appellant would be at significant risk to himself or others if he was found capable of work or work related activity. The Appellant refers to his back pain and implies that CFS led him to become "ratty and unpleasant" and that he lost his [previous] job as a result. In those circumstances did the FTT need to consider whether having to go back to work and perhaps experiencing constant pain/fatigue would have a deleterious effect on the claimants mental health? And did the FTT need to bear in mind the guidance in Charlton v SSWP [2009] EWCA Civ 42 and the type of work for which the Appellant might be suitable, given his conditions?

Finally, should the FTT have obtained details of the Appelants previous ESA award to understand the basis of that award (and so the supersession) ?

Mr XXXX, who now acts for the Secretary of State supports the appeal to the Upper Tribunal. He argues that the FTT failed to make sufficiently clear findings of fact on the descriptors identified in the grant of permission and needed to do more to explain it's decision on regulation 29. He requests that I allow the appeal.........

Not least given the Secretary of States support. I am satisfied that the FTT erred in law for the reasons set out above. I therefore allow the appeal, set aside the FTT's decision and remit the original appeal for re-hearing to a new tribunal. I formally find that the FTT's decision involves an error of law on the grounds outlined above.

The whole thing has been very very stressful and draining, whether I win or loose the tribunal, that's it, I'm giving up then.

I'm not going to debate etc about things as the original thread made my depression miles worse, but I will keep you informed on how the tribunal goes (not getting my hopes up after last time)

Muttleythefrog

Well done on getting to where you have with this. Interesting read... but of course a story I'm sure you wish had not begun. Good luck then with the fresh FTT hearing.

Ames

Good luck with the new tribunal. I know you won't like this, but please try and prepare for it by working out what points you should get and why. Even the judge said your letter was too long. You need to follow the advice we gave you before, to be concise and clear so that the tribunal get the information they need from you.

poppy12345

Ames wrote: »

Good luck with the new tribunal. I know you won't like this, but please try and prepare for it by working out what points you should get and why. Even the judge said your letter was too long. You need to follow the advice we gave you before, to be concise and clear so that the tribunal get the information they need from you.

Completely agree with this. Lots of advice has been given on the previous thread about this. You really do need to concentrate on the Support Group descriptors because you're claiming CB ESA. In the thread above it states reg 29 but that's WRAG entry and not Support Group. Entry to Support Group is reg 35.

Iwanttobefree

While my depression was out of control when I was writing my original thread, hence my mood was all over the place, before I attended the tribunal, I had taken into account the advice on that thread, and I did send a PM to one of the people who had helped the most, asking if they minded me sending them my conclusion that i wanted placed with my notes, to check it over, check it was concise and to the point etc, check I had said why I deserved those points etc etc etc.

The person I pm'd made a couple of suggestions which I did.

And at the Tribunal they asked if I wanted them to just concentrate on this concise conclusion.

The problem was, my mind was dead on the day, stress, depression and chronic fatigue, I simply couldn't think straight. If I had the same tribunal this second, my mind is active, and I would be able to point out things I should have pointed out but simply couldn't remember on the day (I even had a couple of pages of notes to refer to in the Tribunal, and completely forgot)

My depression has never ever been as bad as it was when they stopped my benefits and the run-up to the Tribunal. When I read through my original thread, I'm not surprised people were getting confused. But I still say reading it through does show my mind wasn't where it should have been.

As I've now got over the shock of loosing the benefit, and the Tribunal, I'm hoping I will be more relaxed at the next one. Its the few days leading up to it where I will more than likely stress myself out, and for those days, I will avoid the internet altogether. But should my CFS etc be bad on the day, I wouldn't be surprised in the slightest if I lost again. That is why I have decided in advance to call it a day if I loose.

While I totally agree with the judge that my appeal to the Upper Tribunal was far far to long, the truth of the matter is, I didn't have a clue whether any parts broke the law or not. Had I had to choose a few points that were likely, I would have picked some that he discounted. I was in no fit state of mind to seek external advice.

By me pulling every point to pieces, saying why I thought it was in breach of whatever law, while yes it was long, it did work, in that he agreed with 4 of them.

Just for info should anyone be interested, here is an example snip-it from the appeal I sent the Upper Tribunal , to show how I responded to each point

The original Tribunal said

6. Although duplicated there is s at page 27 a GP report. This is dated 26th July 2017 in which the GP has limited knowledge insofar as he has been the GP for "the past year".

It is confirmed that Mr xxxx struggles with many medical problems including CFS and severe osteoarthritis.

He has been under the care of the Orthopaedic Department with the knee problem and the GP refers to lower back and problems with the legs and at that time in July 2017 had been referred to a neurologist for further investigations.

The GP describes Mr xxxxx as tired most of the time and he has a lot of problems with mobility. He is not able to “walk any long distances and even struggles to get himself to the surgery”.

My response

This falls into my sections

4) Giving inadequate reasons
5) Making a decision that is ‘perverse’

Here the judge states “which the GP has limited knowledge insofar as he has been the GP for "the past year".

Unlike the DWP Medical assessor, unlike the Tribunal Judge and Tribunal Doctor, my GP has full access to ALL my health records going back years. My GP obviously has a better understanding of my health, to say her knowledge is limited, is to my thinking completely perverse.

I also saw my GP in 2012 as part of my CFS/ME treatment (partial copy enclosed for proof), where she diagnosed and confirmed my CFS/ME . That to me shows she knows quite a bit about CFS/ME and my history.

I don’t see an adequate explanation of why my GP has limited knowledge compared to the Tribunal.

On the plus side of things, in February I had 28k of unsecured debt. Due to my GP writing information about my health, my benefits being stopped and how it's extremely unlikely I will work again. the various credit card companies etc, Capital one, Barclays, a few debt collecting agencies etc have decided to write off my debts. I now only owe £13k and those are being looked at by special support departments.

Iwanttobefree

Still waiting for tribunal date.

On a different note, on 3rd December 2018 I finally felt unstressed enough to try applying for PiP.

The process went very quickly.

I had my face to face medical early January and happened to be having one of the worst weeks health wise I had had for ages. I had to fight to stay awake, the examiner said 3 or 4 times she can see me getting more and more fatigued as the medical went on.

I went with my wife, so that she could explain my health from her point of view.

At the end the assessor said she normally asks people to walk over to the bench and show her how far they can bend etc, but she doesn't want me to do it as she can see I'm too ill.

So today I got my PiP award, was surprised they awarded me anything, had been expecting to get zero based on past experiences with the DWP, I've been awarded £57.30 a week and have been told they will contact me after 6th January 2022.

Which of course is better than nothing.


The decision maker said, to quote a bit of it.

You said you have difficulties taking nutrition, managing therapy or monitoring a health condition, communicating verbally, reading and understanding signs, symbols and words, engaging with other people face to face and making budgeting decisions.

You reported you are able to chop your food and feed yourself.

Your mental state examination showed you able to give a full history of your conditions and medication.

You did not need prompting and had adequate concentration and memory.

Your speech was observed to have normal tone, rate and volume.

Informal observations noted you able to understand and answer all questions appropriately

You were observed to engage well with the assessor with adequate eye contact and coped well at the assessment.

Therefore it is reasonable to say you are able to manage these activities independently a majority of the days.

...............

Observations showed you appeared to be in discomfort during the assessment.

........

As the assessment progressed, you appeared to become more fatigued.

.........

It is acknowledged that you are taking medication for your mental health condition and have no specialist input at this time
......

I scored 0 for mixing with other people.
I scored 0 for managing budgeting needs
I scored 0 for managing my treatments

The first paragraphs looks like they are typing from an all inclusive script.

My wife explained in great detail why she still needs to come home to check I've both eaten and drank, even if a sandwich was left next to me.

My wife explained how I can't manage the house hold budget at all, and how she looks after all the bills.

The assessor asked me about each of my health problems that she took from the form that was initially filled in when I applied for PiP.

My wife told her what antidepressants I was on, and my wife then spent about 5 mins searching through her bag trying to find the correct dosage. With my PiP application form I included a printout of my medication, I did not repeat it at the assessment as I don't know the names of all of them.

That entire week I was like a zombie, so ill, stressed, depressed etc I spent most of it staring at the floor etc. In the assessment centre, I must have only glanced at the medical examiners face about 5 times in total for less than a second each time. That's adequate eye contact?

Monday this very week I was at Wellbing, where I had a 1 1/4hr appointment with a CBT. I have been under these for ages, but according th the decision maker I have no specialist input.

I had explained about my depression on the form, and included info from Wellbeing (NHS depression place I'm under). Just like on my ESA form, I said how I struggle to talk to other people, would cross over rather than let someone walk past me etc etc etc

Pointed out I scored 18 on the PHQ9 depression scale and 13 on the GAD7 scale.

I've asked for a copy of the medical report.

This doesn't feel like deja vu at all

Iwanttobefree

Just got my new Tribunal date.

I filled in my Capability for work assessment form on 2nd February 2017

Original tribunal was on 9th February 2018

My new tribunal is on 9th April 2019

I'm just so glad I have my wife to support me, I honestly don't think I would still be here if I hadn't.

If I win, I will simply say on here that I won and how many points I scored.

If I lose, I will say the same.

Not going to go into it anymore, come that date, it's the end of the matter for me, whatever.

Iwanttobefree

I WON, I WON, I WON, I WON

BACK IN THE SUPPORT GROUP BACKDATED TO 2017

The court Tribunal service has just phoned me up, said there's no need to attend my Tribunal this afternoon, the Judge etc have gone through my paperwork and said I obviously belong in the support group....."

So ESA stopped 16th June 2017 as I scored zero points

Failed what I considered to be a very unfair Tribunal and also scored zero points on 9th Feb 2018

Appealed to have the decision overturned, I failed.

Appealed to the upper tribunal to have it overturned, I won

Finally had my appeal date given to me for today, 9th April 2019

I won. Nearly didn't bother taking it to tribunal in the first place. Very very nearly didn't bother appealing to the upper tribunal.

I understand everyone trying to help me in the original thread, and I understand everyone getting frustrated with me when they did so.

I also agree with most of what people said about me, too long posts, going around in circles etc, and the court papers stood at over 300 pages (majority mine), yet I won today on them just looking at the paperwork.

I went from 0 points to back in the support group without even having to show up, it really does seem to be a lottery.

WhenIam64

Well done. And as some of these decisions are published online, is there a case number to quote/look up for others to check.

It will always be argued that each cases turns on its merits and such UTT/FTT decisions are not binding but there will be elements of the case that might be persuasive for others to use in their cases - especially if it is a UTT decision.

Iwanttobefree

WhenIam64 wrote: »

Well done. And as some of these decisions are published online, is there a case number to quote/look up for others to check.

It will always be argued that each cases turns on its merits and such UTT/FTT decisions are not binding but there will be elements of the case that might be persuasive for others to use in their cases - especially if it is a UTT decision.

While I don't want to be unfair (have received a lot of help from this forum) , and while I've given far too much personal information about me over various posts in different forum sections on here, I would still like to remain anonymous.

If someone needs my help and wants to send me a pm asking for my case number, I will happily give it to them on the understanding they don't post it on here (or don't post it on here linking to me).

I can't find it online at the moment anyway.

I don't know how many points I scored.

The decision notice says I had insufficient points to meet the threshold for the Work Capability Assessment, but Regulation 29 of the ESA Regulations 2008 applied.

It then went on to say

No descriptors from Schedule 3 of ESA Regulations 2008 was satisfied but Regulation 35 of the ESA Regulations 2008 applied.

So I got back into the support group through Regulation 35

JoCha

I am made up for you that you won your tribunal - had one myself, which was heard in my absence and which I also won - I note with sorry the length of time that it took. These people do not seem to realise that they are playing with vulnerable peoples' lives here.