UC LCWRA appeal

tifo

Muttleythefrog said:

Before you consider such a request to DWP.... determine first what result you want/how you get it and so I remind you again of my point 3 above otherwise you could be stabbing in the dark against a monster that may not even be there.

Point taken.

poppy12345

tifo said:

HillStreetBlues said:

I don't feel closing this thread and or the other one will be helpful.
There will end up being more threads with references to the old ones.

If I make a new LCW/RA request i'll open another thread so that I can get relevant advice from the start. I think rather than trying it on my own like I did with this one, as it was my first such assessment.

Meanwhile, i'll take advice on this thread for the ongoing appeal, if any.

And you still haven't asnwered the question that's been asked time and time again and we are now on page 16.

So to ask that question again, which descriptor do you think applies to you for LCWRA? Just incase you missed the link for those descriptors you can see it here. https://www.benefitsandwork.co.uk/universal-credit-uc/uc-faq/limited-capability-for-work-related-activity

No point starting a new thread when you've had plenty of advice in this one.

tifo

HillStreetBlues said:

If the OP is unable/ unwilling  to answer the question  "Please tell us which exact descriptor(s) applies to you (and why)."

I feel I meet:

1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally, or could reasonably, be worn or used.

Cannot either:
(i) mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion
or
(ii) repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion.

The above in terms of my chronic gout, this affects me more than 50% of the year at moderate level. This is affecting different and more areas of the body, different this year to last few years. Not all the areas at the same time. It moves around. I do understand the point about the aids.

13. Coping with social engagement, due to cognitive impairment or mental disorder.
Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the claimant.

The above in terms of my eye conditions where I cannot easily mix with others because of the visible symptoms. At times of pain this would not be able to be done. This descriptor does not apply all the time however it does some of the time. For example, in 2019/2020 I did not engage with people at all or go out (I could not anyway) due to constantly having to explain what's wrong with me. I still do to some extent.

There are no specific descriptors for my eye conditions, unfortunately, so I feel the 'substantial risk' applies.

For universal credit paragraph 4 of schedule 9 to the 2013 UC Regulations 2013 provides that a claimant is to be treated as having limited capability for work-related activity if -

The claimant is suffering from a specific illness, disease or disablement by reason of which there would be a substantial risk to the physical or mental health of any person were the claimant found not to have limited capability for work and work-related activity.

In this case, with my eye conditions (esp in 2019/2020) there was no reasonable expectation that I could carry out work related activities with the constant pain and other symptoms I was in. Doing such activities would have exacerbated already severe conditions and there was no expectation I could work, which involve travelling and carrying out employment activities to a standard.

My usual jobs are an IT/web consultant and legal employment. There was no way and it was advised that I could sit in front of a computer screen for any length of time or that required for employment. Even unskilled jobs cannot be done due to the pain and other issues from the conditions.

I hope this answers the questions about why I feel I met LCWRA criteria and i've explained as clear as I can at the moment.

In my appeal, the panel applied

Activity 1
(d) Cannot, unaided by another person, either: (i) mobilise more than 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or (ii) repeatedly mobilise 200 metres within a reasonable timescale because of significant discomfort or exhaustion. 6 points

Then

For universal credit paragraph 4 of schedule 8 to the 2013 UC Regulations provides that a claimant is to be treated as having limited capability for work if the circumstances below apply -
The claimant is suffering from a specific illness, disease or disablement by reason of which there would be a substantial risk to the physical or mental health of any person were the claimant found not to have limited capability for work.

and gave me LCW.

However I feel I should have received 15 points for

Activity 1
(a) Cannot, unaided by another person, either: (i) mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion; or (ii) repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion. 15 points

For (c) it's 100 metres and 9 points.

(In my PIP assessment and appeal (a week later) they gave me 0 points for mobility but knew about my WCA appeal outcome).

poppy12345

tifo said:

I feel I meet:

1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally, or could reasonably, be worn or used.

Cannot either:
(i) mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion
or
(ii) repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion.

The above in terms of my chronic gout, this affects me more than 50% of the year at moderate level. This is affecting different and more areas of the body, different this year to last few years. Not all the areas at the same time. It moves around. I do understand the point about the aids.

Mobilising includes the use of a self propel wheel chair, if you're unable to use one of those then you need to explain why.

tifo said:

In this case, with my eye conditions (esp in 2019/2020) there was no reasonable expectation that I could carry out work related activities with the constant pain and other symptoms I was in. Doing such activities would have exacerbated already severe conditions and there was no expectation I could work, which involve travelling and carrying out employment activities to a standard.

With your eye conditions you're talking in a past tense as if you're no longer affected to the extent that you were back in 2019/20

tifo

poppy12345 said:

tifo said:

I feel I meet:

1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally, or could reasonably, be worn or used.

Cannot either:
(i) mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion
or
(ii) repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion.

The above in terms of my chronic gout, this affects me more than 50% of the year at moderate level. This is affecting different and more areas of the body, different this year to last few years. Not all the areas at the same time. It moves around. I do understand the point about the aids.

Mobilising includes the use of a self propel wheel chair, if you're unable to use one of those then you need to explain why.

tifo said:

In this case, with my eye conditions (esp in 2019/2020) there was no reasonable expectation that I could carry out work related activities with the constant pain and other symptoms I was in. Doing such activities would have exacerbated already severe conditions and there was no expectation I could work, which involve travelling and carrying out employment activities to a standard.

With your eye conditions you're talking in a past tense as if you're no longer affected to the extent that you were back in 2019/20

In terms of wheelchair, the tribunal didn't mention it and i'll need to check the medical report and decision to see if they did. But i've not thought about it and to be honest it would limit the things I do in my usual day because of access. A walking stick is not viable because with severe and moderate gout I cannot walk.

With eye conditions, i'm not affected as much as in 2019/2020 but still feel to the extent that employment is not viable because of the random nature of the symptoms. Whether full or part time. My conditions have not gone away, they just don't give as much as before. It still means at times of symptoms work would be difficult because of concentration etc. There's a certain standard that an employee has to keep to and I would not be able to do that. And screens still exacerbate the eye symptoms to some extent.

tifo

I think it was said on this thread and i've looked and searched but can't find it  .....

Am I correct in thinking that the assessment is for how the claimant is on the day of the assessment but the assessor is meant to look at how they were some months before and will be some months later?

And is the DWP decision maker to look at how the claimant was from the time of the UC50 to the assessment? Or just follow the medical report from the day of the assessment? I think someone here mentioned that they're to look at the whole period of 'claim' which in my case was from March 2019 (which the DWP say). In the MR and appeal bundle the DWP decision maker said it's for the day of the assessment.

I ask because there's been a very long delay in my assessment and it's been said it's just pot luck, a claimant can get better or worse until the assessment and either gain or lose (in my case it's quiet a loss).

Thanks

HillStreetBlues

tifo said:

In terms of wheelchair, the tribunal didn't mention it and i'll need to check the medical report and decision to see if they did. But i've not thought about it and to be honest it would limit the things I do in my usual day because of access. A walking stick is not viable because with severe and moderate gout I cannot walk.

That's why any further appeal is doomed to failure. You didn't understand the criteria for LCWRA.
Being a wheelchair in itself doesn't mean you get into LCWRA. Just because it would limit some things in a normal day isn't a justified reason.



 

Spoonie_Turtle

With the wheelchair, you have to be unable to self-propel the distances in the mobilising activity to meet a scoring descriptor.

There is some case law around whether it would be reasonable to expect a claimant to use one based on their circumstances (e.g. if they live at the bottom of a steep hill with the nearest bus stop at the top) BUT you already have LCW.  I do not think it would make any material difference unless you were unable to self-propel 50m even on level ground to meet the LCWRA descriptor.

HillStreetBlues

Spoonie_Turtle said:

There is some case law around whether it would be reasonable to expect a claimant to use one based on their circumstances (e.g. if they live at the bottom of a steep hill with the nearest bus stop at the top) BUT you already have LCW.  I do not think it would make any material difference unless you were unable to self-propel 50m even on level ground to meet the LCWRA descriptor.

Good points

It shows the importance of having full knowledge of the descriptors  and how they apply to that person.
There might be a reason the a person can't use a wheelchair to go more than 50m, but if that person  was unaware of the importance the person won't have submitted  any reason or evidence  of this being the case.
So a DM  or even a tribunal can assume that person can use a wheelchair.

Muttleythefrog

tifo said:

I think it was said on this thread and i've looked and searched but can't find it  .....

Am I correct in thinking that the assessment is for how the claimant is on the day of the assessment but the assessor is meant to look at how they were some months before and will be some months later?

And is the DWP decision maker to look at how the claimant was from the time of the UC50 to the assessment? Or just follow the medical report from the day of the assessment? I think someone here mentioned that they're to look at the whole period of 'claim' which in my case was from March 2019 (which the DWP say). In the MR and appeal bundle the DWP decision maker said it's for the day of the assessment.

I ask because there's been a very long delay in my assessment and it's been said it's just pot luck, a claimant can get better or worse until the assessment and either gain or lose (in my case it's quiet a loss).

Thanks

Someone will correct me if I'm wrong - technical correctness is a virtue in these parts and some comment later is opinion. But as there's an 'assessment phase' of 3 months you'll have the problem for at least that length of time anyway when assessed and obviously any reassessment would be for ongoing claim at that time. The assessor on the day should be looking at how your condition affects you in your current life.. obviously that goes beyond the literal day as they'll ask you questions (and hopefully you'll give answers) just as on the questionnaire form regarding how you've been affected by illness, injury or disability... logic should be telling you they can't assess the activities either in a WCA or for PIP (difficulties expected to last for at least 12 months from when they started to qualify) regarding just simply the day of assessment although many observations and significant information may be gathered regarding the assessment event or day....e.g. they may ask how you made it to the assessment or observe how you stood and sat. The assessor also will look how your condition may change over time to give prognosis - refer to assessment report. The Decision maker is looking at same and will also take into account that prognosis in deciding when next to review (reassess) your claim if they do award LCW or LCWRA.

If you ask for a DWP reconsideration of decision then a DWP decision maker should look to try to replace the decision made by another of their colleagues applying at that time of the original decision. An appeal tribunal should do same - make a decision based on the circumstances at time of decision they seek to replace. 

I think you are getting slightly hung up on these timings things although I appreciate it significantly is because of trying to undo previous decisions including for PIP. I also note your apparent technical background - do be clear these assessments and decisions are not the height of propriety, protocol, precision or scientific application.. personally I think of it more like a game as someone also from a computing background. Sometimes in a game you have to accept you unfairly lost and play again... and maybe that is applicable to your PIP circumstances. You should report to the DWP any improvement or deterioration in your condition and this would normally trigger a reassessment of entitlement to make a new decision if they felt such a change merited it - there is some indication your eye condition might have improved and I think you need to be careful in deciding any next steps especially since you are wanting to argue to DWP that you are entitled to LCWRA despite improvement in condition when they currently consider you have LCW. Some tailored advice might be necessary and people have given pointers for that.

Oh and thank you for qualifying the current appeal award for LCW and your desire to get LCWRA regarding the similar elevated descriptor substantial risk to your health if not found to have LCWRA. In theory I wouldn't rule out you being able to trigger that descriptor in some decision in future but it can be hit and miss - I think if facing some future assessment (certainly in paper evidence) I personally would be quite keen to remind them you already have been considered to have the equivalent LCW non functional descriptor applied and use it as a basis to argue of the disabling effects/sufferance that would prevent work related activities and go into some extensive examples of circumstances and real events... and do not get too hung up on specific examples from previous office based jobs as you'll probably need to think much wider in scope of activities to impress the greater limitations than they currently accept.