ESA medical assessment Fail....

I sent my appeal off having followed guidelines here, thanks for all the pointers.

My appeal was posted 12 days ago, ( my return by date being 4th July ) the appeal form states it will be acknowledged once processed.
I've not had confirmation of receipt as yet. Nor can I see anywhere I can phone to make sure my appeal is in the system. Is there anywhere I can contact?
Thank you
SuziQ

Having received a copy of the 74 page response from DWP being forwarded to appeal tribunal.
Is there any recent updated info suggesting on average, how long people are waiting for a hearing date ?

My date Come through for my appeal.
I have a few further queries.

Is it usual for DWP to attend the hearing as well?

Is this appeal decision based on my original ESA50 form (completed in September 2013) or is it based on my situation as it stands today?

I am concerned that the appeal papers from DWP appear to strongly contest my GPs working 15 year knowledge of me as his patient (of which he has seen me every 4 to 6 weeks for the last two years) against their assessment doctors 35 minute assessment.

Finally a major factor they are using against me, is the descriptors used for mobilising, standing and sitting. They have commented that "it must be remembered that activities do not have to be performed without any discomfort or pain".
Surely the amount of pain you are under is relative ?

I appreciate a lot of the DWP's 74page response appeal is duplicated scare mongering ... but it does succeed in making me worry & doubt myself. Hence why I'm clarifying these points.
As always, making thanks for your advice & time .

Hi SQ,

"Is it usual for DWP to attend the hearing as well?"

I would not say that it is usual for the DWP to send a Presenting Officer (PO) to present their case at Tribunal.

They generally send a PO where a point of law may be at issue and a reinterpretation of the Legislation may be needed.

e.g. As PIP was a new "benefit" with new legislations they sent PO's to the first batch of PIP Tribunal Hearings.

"Is this appeal decision based on my original ESA50 form (completed in September 2013) or is it based on my situation as it stands today?"

Although you can present fresh evidence with your Tribunal Submissions, the Tribunal will only be "re-looking" at whether you should have been awarded ESA at the time of the initial adverse ESA decision that you have appealed, so any fresh evidence must be relevant to the date of that initially decision.

They will not take into account any change or deterioration in your condition since the date of the original adverse decision.

"I am concerned that the appeal papers from DWP appear to strongly contest my GPs working 15 year knowledge of me as his patient (of which he has seen me every 4 to 6 weeks for the last two years) against their assessment doctors 35 minute assessment."

This would be the norm, however the Tribunal will look at "all" the evidence before them and make a decision on the "balance of probabilities"

"Finally a major factor they are using against me, is the descriptors used for mobilising, standing and sitting. They have commented that "it must be remembered that activities do not have to be performed without any discomfort or pain".

Surely the amount of pain you are under is relative ?"

It is !!!

To be classed as being able to carry out any of The ESA Activities, you must be able to do so Repeatedly, Reliably and Safely for the Majority of The Time (>50% of the time)

Or in the case of The SG Activities on the Majority of Occasions that you Attempt the SG Activities :

ESA Reg 34. (2) Applicable to Support Group :

“A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor”

www.legislation.gov.uk/uksi/2008/794/regulation/34/made

If you cannot carry out the Activities as above you should be classed as not being able to carry them out at all.

I'll refer you back to this extract from Page 28 of our : ESA Claims Guides for Physical Health Issues.


"How to show you score points even if you can actually do an activity

It’s very important that, before you complete your questionnaire, you understand that just because you can carry out an activity that doesn’t mean you are prevented from scoring points for being unable to do it.

This is because if you can perform an activity, but it causes you problems such as:

 severe discomfort,
 pain,
 breathlessness;
 extreme fatigue;

or if you could do it once but couldn’t repeat it within a ‘reasonable’ space of time or with reasonable regularity or safely then that may count as being unable to do it."

This is covered in ESA Legislation and the Tribunal should be well aware of it.

"I appreciate a lot of the DWP's 74page response appeal is duplicated scare mongering ... but it does succeed in making me worry & doubt myself. Hence why I'm clarifying these points."

Yes, appeals bundles can seem quite daunting !

Stick to the facts of your argument, and stick to your guns !!

Let the Tribunal decide !!

Have a look at this, it may put you more at ease :

MOJ Video of “mock” ESA Appeals Process and Tribunal

Good luck and please keep us updated !!

bro58