ESA Appeal can I challenge my own GP's ESA113

Let me start this by saying that I have now, just, changed to another GP within the same surgery (there is no choice within my town).

Yesterday I had my first appointment with my new GP and found out, for the first time, that the previous one had been asked by ATOS for a report on me - he had previously said that they had not contacted him. She printed out a copy for me - just a couple of pages.

I had only seen him once or twice prior to my being sent the ESA50 and at no time had we ever discussed my mobility, disability issues or home life - we hadn't hit it off BUT I didn't think we had "a problem". I had got on very well with the GP I had before that (for about seven years at the same Surgery) but he retired at the beginning of 2012.

I then hit a bad patch with seizure activity and changes / increases in epilepsy meds so didn't bother going to see the GP I didn't get on with unless I really needed to, hence the lack of appointments. I ignored things I should have gone to see a doctor about but felt so ill and was seeing the neuro team every three months anyway.

I appreciate that he may have supplied printed information that has not been provided to me but this is not referred to on the ESA113. However, what he has stated is ridiculous and downright wrong. He didn't even get the date of my epilepsy diagnosis right.

He missed one of my main conditions (brittle asthma) off the list despite the fact it was the reason I had seen him for the last few appointments and, if he had wanted to sabotage my chances, couldn't have done a better job.

For example: Fibromyalgia = tiredness (that's it) nothing else.

He then told them that I use a stick and could walk half a mile. I am taken to and from appointments by car, rarely leave the house, use a heavy-duty underarm crutch or ergonomic forearm one which was supplied by hospital physio.

I couldn't hold a "stick" my grip isn't good enough and it wouldn't support me. I only use the forearm crutch when my neck and shoulders are too painful for me to use the shoulder one; at the physio's suggestion!

Aaaaah

I am assuming (and praying) that I can correct his report as well as ATOS's - pointing out that he does not know me, has missed things out, is incorrect etc. etc.

Many thanks.

T.Loopy

I have only just received the copy documents requested from the DWP under the "Access "Request" which were generally pretty useless as most of the bundle was just a list of codes, and a computer print out showing whether or not I'd had tax credits and milk vouchers over the last XXXXX years.

However, it does not include the ESA 113 (what there was of it) but the ATOS "score card" that is attached to the decision maker's report makes interesting reading.

I have been awarded zero points on every criteria except for the one that relates to consciousness where I get the 15 which put me into the WRAG - which they had no choice but to award me due to seizure activity.

I have not yet started going through things again as I have been ill but the ATOS nurse's written report says one thing and her scoring says something else (?) and can only be based on what my (ex) GP had written / or rather didn't bother to write.

For example, she wrote that "appeared to have some difficulty sitting for 20 minutes" but awarded me zero for sitting.

Admits that she only observed me walking for a few metres across the waiting room floor (with a crutch) but awarded me zero for mobility.

On Left and right upper arms - she says my hands cannot reach behind upper line on my head / cannot put hands behind back etc. but then awards me zero for reaching activity.


The situation at my GP surgery is very difficult as I don't want to cause ripples because it is the only surgery in the area. I will probably end up asking for my copy medical records if I need them - trees permitting Luckily I can afford them as I will get help from my parents if necessary.

All the best and thank you for your help.

T.Loopy

Hi again, sorry about coming back for another round but I have just (after a few months) had back my Appeal papers and am trying to get things together to return the first few pieces of evidence to them.

I thought I was going to be fine regarding the mobility criteria for the Support Group as I had a fresh report from my podiatrist regarding my (lack of) walking ability. This disputed the “evidence” from the ATOS nurse who had (by osmosis presumably) on merely touching the top of my feet whilst I was wearing shoes, decided that there was nothing wrong with my feet or ankles.

With brittle asthma, fibro, active seizures, neck and shoulder problems, pelvic nerve damage, general joint pain and weakness etc. etc. I had assumed that no-one could be expected to use a wheelchair; even the ATOS nurse had said I had a weakened grip in my hands and was breathless, however I have been awarded a manual one by the Decision Maker – that has been their recommendation to the Appeal Tribunal anyway.

My question to you (in a long winded way – sorry) relates to whether I am allowed to query not only my physical / medical suitability to use a wheelchair (asthma / pain / seizures etc.) but also the environment in which I live?

I am in a small rural market town (Medieval origins) with narrow uphill pavements where, in some places, two people cannot pass eachother. No dropped curbs and no accessible shops. My house is half-way up another very steep hill and I have a drive which virtually requires a 4x4 to access it. When we have bad weather, I would have been snowed in if my father didn’t have one and you couldn’t get more than a few feet from my front door in a wheelchair even if someone was pushing you! (I could obviously provide photographic evidence if this was useful.)

Secondly, someone who has seizures and suffers from hallucinations and dizziness (who, by law, cannot have a motorized scooter or wheelchair in case they cause an accident) would surely be unsafe and dangerous to themselves in a manual chair. During hallucinations I freeze up and stop what I am doing, I wouldn’t stop any forward motion or apply a brake (I’ve never been in a wheelchair without someone pushing me so am only assuming this) but presumably could easily end going in front of traffic or into pedestrians?

I am already going to try to get other evidence regarding my asthma problems and do have copy correspondence dating back some years so that I can build up a picture of the ongoing, uncontrolled nature of it.

Usefully I had a medical with a DWP doctor some years ago and have a copy of her written report where she had made a lot of notes about how ill I looked and how bad my asthma was at that time, she took my peak flow and wrote about my breathlessness and about how limiting it must be on my life. I am hoping I can also get information from my asthma nurse about how many courses of oral steroids I’ve had over the last five years and so on and I can then include a copy of the DWP’s own guidance on severe asthma which in which even they admit that is limiting on activities. I am also getting fresh evidence on the state of my neck and shoulders.

Have you ever heard of the “seizure defence” being used in this way? I do not have tonic clonic seizures but complex partial and about five or six a month and frequent hallucinations.

Quite apart from my other problems I would feel totally unnerved being in charge of something on wheels that I could steer out of control. It is bad enough falling over but at least there is only my body length to fall if you see what I mean! I know it is only an imaginary wheelchair, but even so.

Thanks for your assistance.

TemporallyLoopy wrote: Hi again, sorry about coming back for another round but I have just (after a few months) had back my Appeal papers and am trying to get things together to return the first few pieces of evidence to them.

I thought I was going to be fine regarding the mobility criteria for the Support Group as I had a fresh report from my podiatrist regarding my (lack of) walking ability. This disputed the “evidence” from the ATOS nurse who had (by osmosis presumably) on merely touching the top of my feet whilst I was wearing shoes, decided that there was nothing wrong with my feet or ankles.

With brittle asthma, fibro, active seizures, neck and shoulder problems, pelvic nerve damage, general joint pain and weakness etc. etc. I had assumed that no-one could be expected to use a wheelchair; even the ATOS nurse had said I had a weakened grip in my hands and was breathless, however I have been awarded a manual one by the Decision Maker – that has been their recommendation to the Appeal Tribunal anyway.

My question to you (in a long winded way – sorry) relates to whether I am allowed to query not only my physical / medical suitability to use a wheelchair (asthma / pain / seizures etc.) but also the environment in which I live?

I am in a small rural market town (Medieval origins) with narrow uphill pavements where, in some places, two people cannot pass eachother. No dropped curbs and no accessible shops. My house is half-way up another very steep hill and I have a drive which virtually requires a 4x4 to access it. When we have bad weather, I would have been snowed in if my father didn’t have one and you couldn’t get more than a few feet from my front door in a wheelchair even if someone was pushing you! (I could obviously provide photographic evidence if this was useful.)

Secondly, someone who has seizures and suffers from hallucinations and dizziness (who, by law, cannot have a motorized scooter or wheelchair in case they cause an accident) would surely be unsafe and dangerous to themselves in a manual chair. During hallucinations I freeze up and stop what I am doing, I wouldn’t stop any forward motion or apply a brake (I’ve never been in a wheelchair without someone pushing me so am only assuming this) but presumably could easily end going in front of traffic or into pedestrians?

I am already going to try to get other evidence regarding my asthma problems and do have copy correspondence dating back some years so that I can build up a picture of the ongoing, uncontrolled nature of it.

Usefully I had a medical with a DWP doctor some years ago and have a copy of her written report where she had made a lot of notes about how ill I looked and how bad my asthma was at that time, she took my peak flow and wrote about my breathlessness and about how limiting it must be on my life. I am hoping I can also get information from my asthma nurse about how many courses of oral steroids I’ve had over the last five years and so on and I can then include a copy of the DWP’s own guidance on severe asthma which in which even they admit that is limiting on activities. I am also getting fresh evidence on the state of my neck and shoulders.

Have you ever heard of the “seizure defence” being used in this way? I do not have tonic clonic seizures but complex partial and about five or six a month and frequent hallucinations.

Quite apart from my other problems I would feel totally unnerved being in charge of something on wheels that I could steer out of control. It is bad enough falling over but at least there is only my body length to fall if you see what I mean! I know it is only an imaginary wheelchair, but even so.

Thanks for your assistance.

Hi TL,

The use of a manual wheelchair unaided, is only considered in an indoor environment.

See this extract from Pages 75-76 of the : WCA 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.

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."


You should also read from before Page 75 where further detail is provided regarding aids and appliances.

The DM would also have to show that it would be reasonable to expect you to use a manual wheelchair, unaided.

Have another look though our ESA Claims Guide on Physical Health Conditions on "mobilising" under the heading of :

"New ESA50 form"

On this page :

ESA Claims Guides

There is also information on this : Here

bro58

Hi TL,

You can also have a look at :

"Use of aids and appliances, General application" At 42158 onwards of : The DM Guide LCW & LCWRA

Plus : The DM Guide ESA Amendments from 28/01/13

With respect to The SG Activities/Descriptors, ESA Reg 34. (2) is applicable :

“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

bro58