ESA appeal question - sitting issue...

Bud wrote: Hi Gordon
I totally agree with you that it should be seperated and sent to the right department,
but its the DWP we are dealing with here

I raised concerns in an earlier post about this because I did exactly what CP is doing, sent seperate letter, sent on a seperate piece of paper and within the same letter as the GL24 and it was not forwarded to the data controller that is why I stated there is a big possibility that it wont be forwarded
I do hope you agree with me that CP should send another independant letter to the Data controller just to be on the safe side

I would tend to agree with you B, as I suffered similar problems when including a SAR in the same envelope as a letter regarding a different subject.

The SAR was "lost" and I had to reissue it with a threat of a complaint to ICO.

That is why I always advise that a SAR should be posted in its own envelope addressed FAO : The Data Controller, with DPA 1998 SAR written on front, top. left of the envelope.

bro58

Dear Moderators
First a quick note to let you know I have now been sent the ESA85 report from my assessment, the DM's Scoresheet ESA85 and ESA113 from my GP (and LT54- which is what I was sent with my original ESA rejection from the DM, just with LT54 on the pages instead of ESA65), so my 2 letters must have reached the right departments.

I also have a letter from the "Decision Making and Appeals Team" asking me to send any further evidence which supports my appeal, but saying that if they cannot revise the decision in my favour then my appeal letter and papers will be sent on to HMCTribunals Service. My Physio is not even back from his hols yet, so I'm not rushing to get together more evidence at this point (having read revisions are unlikely anyway), but have been looking through things thoroughly and doing a rough draft of a submission to help me better understand what points I need to get across and what further type of evidence I should be asking people for to support my case.

I have come to the conclusion that the DM read nothing else but the ESA85 report to make his decision, and even that he read very selectively. Possibly due to my brain wandering off topic a lot at the assessment, the ESA85 does not really reflect my day to day limitations well at all, and even where the nurse did manage to note down I did something in a limited way, the DM then has me doing it in his comments without the limitations... (eg me lying on the sofa to watch TV then gets stated as "She is able to watch television" under his discussion of my Standing/Sitting ability!?) "Variability" also seems to simply get an automated paragraph at the start of the ESA85 to say it was considered, then never gets another mention.

So the Atos nurse interestingly recommended me getting zero points too, and as the Standing and sitting evidence has no mention of a workstation, and only relates to "lower limb" evidence, it discusses nothing relevant to my neck issues with the activity, and the zero points award does seem to be suggesting that Atos do regard me sitting on the floor as perfectly adequate...

So...I've been lying down with my iPad typing a lot...which I'm sorry to say leads me to wish to ask you more questions.

1. Because my mind wanders in the afternoons, I wish to have all relevant info and references to hand, to try to keep myself on track. There are so many bits of evidence to question, bits to quote from my original ESA50 info, bits not fully recorded correctly in the ESA85, or even then used incorrectly by the DM...even before quoting additional info, I've already written a 10 page submission letter. I realise this is much too long for the tribunal to probably even bother to read, so am wondering what my best options might be?

a) Can I provide a series of shorter statements written by myself and referred to if they wish to, in which case do I write each in the form of a separate letter? (eg 2 pages refer to a mental health descriptor which is only relevant if they decide to agree with my reasoning that Chronic Pain should allow me to receive points for mental function side effects from medication)

b) I also wish to explain what my pain experience really is, how easily triggered it is, and what triggers it - should I just refer to this in another statement? (Part of what I want to say is taken from info I sent with my EAS50, but I have no faith in anybody bothering to read what isn't either in the submission, or attached to it closely.)

c) Should I keep giving full details of where I am referencing points from, or just quote the LT54 or ESA85, then provide actual page and paragraph numbers on the day if they want them (as that will help cut some of the writing down)?

2. A bit more of a technical question (possibly one for you Gordon, if you are available)...In the Benefits and Work guidelines "Ways to challenge a DLA or AA medical report" p17 states:
"Sample text
“The EMP has stated that I have only slight impairment in my upper and lower limbs because there is no evidence of muscle wasting. However, many people like me with severe ME do not exhibit muscle wasting and yet have severe limitations on their ability to use their limbs because of the degree of fatigue and pain they experience. The EMP has looked solely at what he considers to be impairment without taking into account the degree to which I am disabled by my condition. This is not in keeping with the training the EMP should have received.” "
I still think one main part of "evidence" being used in my case is that because privately funded Physio now keeps my limbs mobile and I have redeveloped my muscles, they wrongly regard this as meaning I don't still battle with significant / frequently reoccurring / easily triggered pain problems.
a) Do you know if the Atos nurse is also to be referred to as an EMP, and is there some sort of training manual stating things like the above which may be helpful to me? (I don't feel I can state something as not in keeping with her training, when I've no idea what her training may have been.)
b)As ME sufferers often have chronic pain problems associated with the ME, could the above quote itself be of use?
c) I have found a quote online from a free extract from a massive textbook for manual therapists. This definitely does refer to Chronic Pain case histories with returning function but ongoing pain problems not resolved. Is it ok for me to give a simple quote from a book, or will they expect me to turn up at the hearing with the full book to show them?
d) When I go back to see my Pain Consultant in November (not relevant to my condition itself in the hearing as I last saw him 5 years ago), do you think there would be any merit in seeing if I can get him to simply tick multiple choice boxes on a form (and add comments if he wishes), just asking if he has come across examples of returning function but easily triggered severe ongoing chronic pain? And also possibly asking if he believes longterm widespread Chronic Pain should be regarded as purely a Physical problem, or as a Physical / Psychological problem? (Which presumably allows it Mental Health combined status...I've found plenty of quotes to fit this too, but want to keep things simple) Or do you think such brief theoretical statements would be seen as worthless?

Sorry this got long again, and many thanks for all your help. As I now seem to have started panicking just at the sight of brown DWP envelopes, I don't think I'd have got as far as even trying to make sense of the EAS85 report without your guides and forum to turn to.

Hi CP,

With respect to this extract from your post ;

"My Physio is not even back from his hols yet, so I'm not rushing to get together more evidence at this point (having read revisions are unlikely anyway)"

Quite a large number of our members have had successful reconsiderations as the result of an appeal.

If at all possible, I would advise that you send any evidence that you may have to the DM/Appeals Team, ASAP.

Far better to obtain a successful reconsideration, than endure a lengthy period on Assessment Rate ESA, which can be 9 months to a year, waiting for an appeal hearing.

bro58

Thank you so much for your practical advice once again, Gordon

This may sound a daft question, but if I do my submission as an indexed document, with multiple numbered sections (which will be much easier to read) , rather than the letter style I'd found suggested in your guidelines, should I still I write and sign a covering letter to go with it, addressed to the Tribunal Service, and should I also number every paragraph?

My 2d questions earlier for my Pain Consultant were simply to ask 2 theoretical chronic pain questions not specific to my personal case, so I assume timing would not be relevant? I just wondered if there was any point in doing that, as his opinion will surely be seen as worth more than mine?

Although I've tried to highlight the descriptors I believe are relevant, I'm still really struggling to quantify variability for them, especially as half my normal day has to be spent lying down in order to keep control of my pain levels.

I've decided to state what I can realistically manage to do if I were to continue to stay upright when I know full well I need to lie down to stop pain spiralling. As this is half of each waking day for me, I've then detailed the much lower level of things I can achieve during flare ups (which over the year add up to equivalent of 2.5 days per week), and then stated that by combining the 2 it seems reasonable to assume that the higher level of ability is relevant for me for the majority of time. By sticking to what will cause me "significant discomfort" to do once, I am trying to avoid the whole issue of repeatability, and relating it to a real workplace...

I've stuck with using the terms "extreme pain" for descriptors during flare ups, and "significant discomfort" for higher level descriptors during "I should be lying down" periods. I know you prefer numerical pain scales, but I have always avoided them, as pain is such a subjective measurement. "Significant discomfort" seems to be what the ESA214 guidelines are, and I am hoping giving a short Further Information section explaining my experience of pain will be enough to get my point across.

I'm really starting to think I should have just deliberately got myself into pain problems rather than lying down to rest before my assessment, so I could have just tip toed in very slowly and muttered "this is what pain looks like"...


Thanks for your input too Bro58

I rang the office dealing with my claim today to ask how long I would have to get in further evidence for revision, and found I have to ring next week to check they definitely even have my GL24 and fit note (apparently I'm probably currently inbetween the IB and ESA systems, so don't officially exist on either). The guy I spoke to said people given zero points by the DM usually have to go to tribunal anyway.

I know the judge is not medically trained, but I think I need the Dr at the hearing to be reading my arguments, as I assume the Judge asks their opinion on the medical side of things. Now I know the Atos nurse gave me zero points, and never even discusses variability in her report, I can't believe that a DM will go against what they decree as a "sound medical assessment". I think I really need my Physio to give his opinions now, to help counter the idea that if your limbs work and aren't wasted then you must be able to use them without pain, and to force them to think I have variable problems. And some statements from people who know me about what I can really manage to do.

My plan is to get everything in order, send it in to the Tribunal Service, then try to forget all about it until the date. WRAG-CB is only for one year anyway, so I'd better practice having less...