ESA Tribunal - ATOS already admitted flawed medical

[andrew623]

Hi,
My wife (suffers from Fibro) has an ESA Tribunal end of July after failing an ATOS medical last December. Her contribution based ESA ended at the end of april and has been paid the appeal rate up until then. The Tribunal is just to appeal for the full rate between Dec and April. As her representative, I challenged the ATOS medical and received their response admitting the medical was 'not medically reasonable', 'that the diagnosis history of Fibromyalgia is insufficiant and does not cover the variability of the condition'. There are other flawed findings and deficiencies they identify in their letter and they also appologise profusely for the inconvenience caused. The same thing happened the last time around and DWP overturned the decsiion in her favour. However this time, the ATOS letter says that they will contact the DWP and let them know their findings and DWP may be in contact should this impact their decision to refuse ESA. After no contact from DWP, I tried contacting them twice explaining this development but they haven't acted on it and they only have on their system that ATOS have contaced them but with no details. Anyway, this Tribunal should be interesting. I am about to write my submission which will include ATOS' response letter. I hope to appeal for my wife to be placed into the support group. It seems to me (correct me if i'm wrong) that the only way to get into the support group is to be terminally ill, fulfil one of the 15 point descriptors (which my wife doesn't), or be pregnant and going back to work will be a risk to the unborn baby. I also read that should the condition or illness cause 'substantial' risk to the individual or any other person if they returned to work, then the support group should be considered. There's no way my wife could possibly go back to work in any capacity due to the severity of her illness and have her GP's supporting letter to back this up. Has anyone used this 'substantial' risk angle to get into the support group before, or am I trying to flog a dead horse here? I'm thinking 'psychological stress' being at work when severely fatigued, muscle stiffness, poor balance and uncoordinated movements causing an accident, working will cause pain, fatigue or substantial social embarrassment? We're not trying to pull a fast one, it's just that she is still unable to work 5 years after being diagnosed and after initial marginal improvments, she has suffered constant symptoms for nearly 4 years. Any thoughts? Sorrry about the long winded post but I hope any info regarding the 'substantial risk' issue in my rant will be of some use to someone somewhere.
Kind Regards,
Andrew.

[denys]

with the tribunal Andrew, the whole thing is so convoluted its a wonder anyone ever finds their way through things

[andrew623]

Hi all,

Just an update on this post. Had Tribunal, got the 15 points and my wife put into the Work Related Activity Group (WRAG). A tad dissapointed though that she wasn't placed into the support group. My submission to the Tribunal was based around the following leglislation:

(a)the claimant suffers from some specific disease or bodily or mental disablement; and
(b)by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity”.

My wife attended and completed a Chronic Pain Management Programme (CPMP) which taught her how to develop a structured routine to her everyday life. The daily routine she has developed and practises daily involves relaxation techniques, pace setting of activities, goal setting and sleep management. At home she is able to carry out this daily routine in her own time, at her own pace and in the comfort of her own home. We submitted a medical report which stated that it is “imperative that she continues to put into practise the skills that she has gained through the Chronic Pain Management Programme”. We also submitted advice from the programme which advised her to carry out the daily routing in her own home.
I submitted that if she wasn't found to be placed in the support group, then her daily routine would be impossible to carry out and would not only have a detrimental effect on her functional mobility but more importantly a substantial risk of severe depression from which she has previously suffered.
Does anyone have any views on this and whether it's worth pusuing? I suppose I could ask for a Statement of Reasons, and, if the tribunal didn't consider the pain management programme evidence, the Tribunal made an "error of law". I could then ask if it could be forwarded to the Upper Tribunal.
Does anyony think this is arguable that this could be seen as a substantial risk to mental or physical health, or is this unreasonable to argue for?
Many thanks,
Andrew.

[*Lisa*]

Definatly worth pursuing!

You have a very valid and fact point!

The DWP/governments are all contridictive which no wonder why were all going mad its a crazy system!

Your wife have gone thro an intense pain management programme purely to benefit her health for the future yet as you say if shes having to seek/go to work how can she carry these out for improvement?

The governments were talking about maybe looking into cutting benefits for people on the sick if there not deemed to be helping themselves yet when we try they become contridictive like your situation and put her back into employement

If they dont listen to you then why put people on these course costing a packet by the NHS if the DWP/goverments are not gonna play ball twisted system! dammed if you do and dammed if you dont!!!

Please let us know the outcome as i feel this information could be beneficial to all fibro's

[andrew623]

Thanks for your encouragement Lisa,http://www.ukfibromyalgia.com/forums/posting.php?mode=reply&f=11&t=14244&sid=a1cc27793b7faf4e31a12962a08f86ad#

I will request a Statement of Reasons from the Judge tomorrow. I will then take it from there.
The only indication on the Trinunals Decision Notice is that '"No Schedule 3 descriptor applied".
I presume they refused entry to support group as she didn't achive any 15 point descriptors. I clearly submitted medical evidence
in my submission, along with info given to the Judge on the day, that is imperitive for my wife to carry out these techniques on a daily basis st home. Whether they discarded this evidence I don't knoe until I receive yhe statement of reasons from them.
Sounds like a good argument to me, glad you think so to. Right, request for statement of Reasons going ouy tomorrow.

Thanks for replying, shall keep you updated as this could be an angle for other FM sufferes in future, well, until they start changing the benefits system again nect year!

Many thanks.
Andrew.

[Iceskatemum]

Good luck , sounds a logical interpretation of the law..I'm impressed.

[*Lisa*]

Andrew you have a fight but well worth it!

[andrew623]

Thanks for your moral support kind people, I shall keep you informed, it may help fellow FMS sufferers get into support group.

Andrew.

[andrew623]

Hi All,

I received the Judges statement of reasons eventually. It seems they took into account all the evidence I submitted, but the last statement reads "We also considered Regulation 35 which was raised in the submission for the appellant. We cannot see, however, how being asked to attend the occasional job focused interview could constitute a serious risk to the appellant's physical or mental health". Basically, as they have made a desicion on all of the submission, I can't appeal on an 'error of law' as none was apparent. A bit gutted as the payback if my wife had been put into the support group would have been nearly £4000. Oh well....

Regards,
Andrew.

[Iceskatemum]

Andrew I am at the beginning of my benefits journey and am already stressed so am very impressed that you kept things going for so long.
Can you appeal with further evidence that the judges are incorrect in thier statement "We also considered Regulation 35 which was raised in the submission for the appellant. We cannot see, however, how being asked to attend the occasional job focused interview could constitute a serious risk to the appellant's physical or mental health".

Can you raise factors that would seriously impinge on your wifes health should she be asked to attend such interviews. I know for me I get stressed for a few days before going anywhere as I don't know how I will feel on the day and particularly if it was something I felt I couldn't get out off, my stress levels would be up the wall . The same re how I will feel for days after , need to increase medication, more rest, etc. Did they use all available information to make thier decision or if the information was not complete ie did your submission fully outline how attendance at such interviews would effect your wife, if not did they ask for additional information to allow them to make a fullly informed decision under the terms of the overarching legislation.

I am not lawyer and not even totally aware of all the stages of a benefit system so sorry if in my niaivity if I have asked a stupid question.

[andrew623]

Hi Iceskatemum,
Don't be silly, what you ask isn't a supid question at all. I'm still mulling it over at the moment. I'm confident I can have the hearing 'set aside' as they indicate in the statement of reasons that there are no support group descriptors identified, however, the ATOS medical report was not 'medically reasonable' and failed a quality audit by ATOS themselves. I suppose then that I could ask for a new hearing and then provide more evidence of the increased stress levels as you suggested, whether they would deem this a serious risk to her health is another thing, it may well be worth a go though. I think i'll mull it over for a few more days and decide if it's worth pursuing regulation 35.

Kind regards,

Andrew.

[andrew623]

Hi Iceskatemum,
One more thing, in answer to your question on whether my submission fully outlined how attendance at such interviews would effect my wife, unfortunately no. Can't beleive I missed that out. I thought that highliting circumstances which would cause a serious risk to her health should she have to attend work was sufficient. I was wrong on that though, I should have included the effects of attending work focused interviews as you mentioned. I guess i'll have this opportunity again if I ask the hearing to be set aside.

Regards,

Andrew.

[zappa20]

When is your wife;s next assessment due?. Alternatively as long as your wife's ESA claim has been kept open, you could wait until she is reassessed and make a strong case for Support Group on her next ESA50 form and at any subsequent reassessment. This has worked for other people. Appreciate you'd miss out on an amount of money but the full rate would be reinstated from the date she passed.

It's very unlikely from what you've said that you can change this decison. The stress which would need to be caused would be considerable and verging on life threatening, and you'd need medical support to back this up.

[andrew623]

Hi Zappa 20,

Yeah, I see what you mean, unfortunately her contribution ESA has expired so we don't get another crack unfortunately, unless I ask to set aside the hearing, but, like you said, proving the severity is another thing.
Regards,

Andrew.

[zappa20]

It doesn't matter. As long as her claim is kept open. Even although she isn't currently receiving ESA payements, if at her next assessment she meets the conditions of the Support Group , payment wll restart.

Will be very difficult to medically prove why someone who can perhaps attend doctors or hospital appointment or indeed go anywhere can't attend an occasional WFI, especially as some are done over the phone. Pain and stress are
very subjective and ahrd to prove. As well as that before an appeal to the 2nd Tribual is accepted a panel of jduges will decide if there is a case to allow it. It is exceptionally difficult to achieve, but not impossible. Just being honest.