ESA Tribunal - ATOS already admitted flawed medical

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Re: ESA Tribunal - ATOS already admitted flawed medical

Postby andrew623 » Wed Jan 16, 2013 11:24 am

Hi,
Just an update. As I said in an earlier post, my wife got the magical 15 points at the first tier tribunal which was great (she scored 0 points at the WCA). I argued for regulation 35 in my submission, which they declined. Anyway, I requested a 'Statement of Reasons' from the Tribunal where they stated that 'attending the occasional interview in our view would not constitute a serious risk to the appellant's health'. I have replied with GP support letter that she is not in a medical position to attend such interviews, and her health would suffer substantially if she were to do so. I also enclosed a copy of the ESA wrag group requirements from the gov.uk website which states that persons “have to go to regular interviews with an adviser. The adviser can help with things like job goals, improving your skills, work-related issues”. Although the job centre plus may be very flexibile with your requirements, what it says on the gov.uk website is completely different. For example, the job centre plus might tell you that they can conduct a phone interview should you not be able to attend, but I can't find this flexibility anywhere on the gov.uk website (maybe that's just me not looking hard enough). In my request for reconsideration, I have corrected the tribunals statement that my wife is only required to attend 'occasional' interviews, where the gov.uk website states 'regular' interviews, also the sanctions involved if you don't attend, fingers crossed.
Andrew.
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Re: ESA Tribunal - ATOS already admitted flawed medical

Postby Iceskatemum » Wed Jan 16, 2013 2:24 pm

Hope things work out for you
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Re: ESA Tribunal - ATOS already admitted flawed medical

Postby andrew623 » Thu Feb 07, 2013 2:13 pm

Hi All,

Really dissapointed,
Had a letter this morning refusing permission to appeal to the Upper Tribunal, even though the First Tier got their facts wrong. I guess now to appeal directly to the Upper Tribunal. This is new territory for me. What are the chances of the Upper Tribunal agreeing lo looking into my appeal? Not looking too good in my view. :cry: :cry:

Regards,
Andrew.
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Re: ESA Tribunal - ATOS already admitted flawed medical

Postby andrew623 » Thu Feb 07, 2013 11:54 pm

Hi all

In short, my Fibromyalgia wife got her 15 point at tribunal after failed WCA and put in WRAG group. We did request support group and had good reasons for this on Reg 35(b). The first tribunal's decision was that:
"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"
I replied to the first tier Tribunal to ask for a change of mind or permission to appeal to the Upper Tribunal. I included a supporting report from my GP who supported our view. Their statement of reasons said that 'attending the occasional interview in our view would not constitute a serious risk to the appellant's health'.
The ESA wrag group requirements from the gov.uk website which states that persons “have to go to regular interviews with an adviser. The adviser can help with things like job goals, improving your skills, work-related issues”.
In my view, 'occasional' and 'regular' are 2 very different things and noted this in reply to First tier. Now they have said they can't change their decision and refused permission to appeal to Upper tribunal. I know I can appeal directly to the Upper Tribunal which I intend to do. I know the Upper Tribunal can't accept any new evidence, but could someone advise me on whether the First Tier had a duty to consider the GP reort which we gave them after they refused support goup for my wife. Also the difference between occasional and regular, is that an error of law, or just a technicality?
Many thanks
Andrew
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Re: ESA Tribunal - ATOS already admitted flawed medical

Postby zappa20 » Fri Feb 08, 2013 4:45 am

Sorry to hear it but as expected. Can't think there is any point of law to argue over the words 'occasional' and 'regular' .Neither words define a set frequency, nor is there any written frequency for WFI's which take place to compare it to. eg I have regular check ups with both cardiac and vascular clinic. Cardiac is annually and vascualr is 6 monthly.

As your wife isn't receivng ESA payment although eligible for ESA it's highly unlikely she'll be called to more than 1 WFI if even that , as she isn't worth any bonus payment to them. Sad fact but it's all about the money now.

How do you know they ignored your GP's report? Bit confused now.
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Re: ESA Tribunal - ATOS already admitted flawed medical

Postby andrew623 » Fri Feb 08, 2013 12:37 pm

Hi Zappa20,

Thanks for your reply. Oh, I don't think that they ignored the GP report, but as it was further info which was given after the First Tier's decision, were they obliged to consider it? If so, then I beleive they haven't given sufficient reasons on why they didn't take into account her GP's report. If they weren't obliged to accept it, then that's the end of it I guess :(

Regards,
Andrew.
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Re: ESA Tribunal - ATOS already admitted flawed medical

Postby zappa20 » Sat Feb 09, 2013 10:28 am

The bit I'm confused about is when your GP's addtional report was submitted. AFAIK The Upper Tribunal will only consider info available to the Tribunal panel at the time they made the decision to put your wife into the WRAG group to see if there is an obvious error of law or ignoral of obvious important material facts. And the original Tribunal would only consider reports pertinent to the condition of your wife at the time of her assessment.

Obviously it's not clear what your GP had written in the report , can't think the example you gave on a reason in not being able to complete daily exercises or some additional stress would meet substantial risk criteria IMO. Many people have concessions and adaptations in place to allow them to be in the work place.

Why don't you ask ATOS to re-assess your wife sooner than her next WCA is due on the basis that your wife's condition has deteriorated and see if you get a better decision.?
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Re: ESA Tribunal - ATOS already admitted flawed medical

Postby millymoodoo » Sat Feb 09, 2013 11:02 am

Hi

It is so wrong that we are being made to prove how ill we are despite it being diagnosed by the medical proffession!!! When i initially applied for ESA which was about 4 years ago i went for a medical and only scored 6 points so failed the medical altogether, so i appealed their decision. In the meantime whilst waiting for my tribunal to come up i had an appointment with the local CAB who requested a report from my gp and they sent this straight off to the tribunal. The decision was overturned immediately and i was put in the support group and they left me alone for nearly 4 years.

I then recieved a letter from them last november and a new medical form that i had to complete which i did straight away hoping to get a response before christmas (which didnt happen). I included copies of all out patients appointments, all test results and 8 page typed report on how all of the illnesses i have affect my life and statements from friends that know and help me. On the 23rd Jan (my birthday of all days) i recieved a letter from DWP stating they have put me in support group again for 18 months and i didnt need a medical.

I suffer with severe crohn's disease which causes incontinance quite frequently but in the past i have excluded the incontinance bit as i am only 49 and feel embarrassed :oops: :oops: :oops: that this happens, but its this that made the difference to me being placed into the support group, as i have 3 prolapses in my spine it has increased the episodes of incontinance as i just cant get there in time as my legs will just not move fast when i need them to. I believe incontinance needs to happen at least once a week to get it, i more than qualify as mine is many more times than that. So if there are any problems there then please include it, dont leave it out due to embarrassment :oops: :oops: like i did, i didnt like admitting to it but i know things are very different now.

I have struggled for the last 8 years with incontinance and i told nobody except mum and my best friend, i just tried to pad myself up and hope for the best but since i have said something i have been referred to the continance clinic and now get everything i need free of charge as it was costing me a fortune. I know i am using the correct pads and its not obvious i am wearing them which gives me so much more confidance. It just shows that you really do need to tell them everything , even things that you dont think are relevant, my life is so much less stressful since i did. Like me it could be included in the additional information where you can go into more detail.

I hope this is of some help to you
Take care and :goodluck2:
Millyxxx :-)
Never look down on anyone unless you are helping them get up!!! When life hands you lemons, make lemonade!!! Everyday is a gift which is why we call it the present
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Re: ESA Tribunal - ATOS already admitted flawed medical

Postby andrew623 » Sat Feb 09, 2013 1:14 pm

Hi Milly,
Sorry to hear about your experience with DWP/ATOS, but thank you for sharing it with us, could be useful for people to know.
Zappa20, the GP report was submitted after the First Tier made their decision unfortunately. It stated that these Job focused interviews would cause my wife significant stress/depression. I spoke to the Tribunals office and asked their advice, and they said that the First Tier weren't obliged to take the late evidence into account, but they could have if they felt it neccesary. They obviouslt didn't so they've done nothing wrong there. I now have the help of a local welfare advisor to see if there was any error of law when the First Tier made their decision. I'm not very hopeful but it's worth looking at as the backpay is about £4000. I have googled 'ESA error of law' and there seems to be quite a few instances where this could take place. If I can find anything worthwhile, perhaps I can ask the Upper Tribunal to 'set aside' the first tribunal. The GP's report would then be eligable for consideration. Like I said though, not very hopeful.

Many thanks,
Andrew.
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Re: ESA Tribunal - ATOS already admitted flawed medical

Postby zappa20 » Mon Feb 11, 2013 2:26 am

Can sympathise. Wish you well . The decision to stop WRAG after 365 days was a conscious cost cutting exercise by the government, and made for no other reason than that. TBH I think it's just the slow beginning to bigger cuts and changes which lie ahead.
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Re: ESA Tribunal - ATOS already admitted flawed medical

Postby andrew623 » Mon Feb 11, 2013 5:07 pm

Hi Zappa20,
Yes, cost cutting exercise definately. Why can't they just get they're WCA's correct, then the money they save on Tribunals would cover the genuine claimant's ESA twice over I reckon. I have been through my submission and there are definately some discrepencies. e.g it seems that the 1st Tier Tribunal referenced info from the WCA which was deemed null and void by ATOS as it failed a quality audit. Whether this constitutes an error of law I don't know. Only an Upper Tribunal Judge can determine that I suppose.
Cheers,
Andrew.
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Re: ESA Tribunal - ATOS already admitted flawed medical

Postby zappa20 » Thu Feb 14, 2013 5:26 am

Well it might. See what the welfare advisor helping you thinks. Might depend on whether it was a material fact relevant and/or relevant to your reasons for appeal for Support Group. And a few other things. Like most things the devil can be in the detail.

Forgot to say AFAIK Upper Tier won't overturn decision but order thing to be looked at , at a new Tribunal .

Good luck.
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Re: ESA Tribunal - ATOS already admitted flawed medical

Postby andrew623 » Fri Feb 15, 2013 4:51 pm

Hi Zappa20,
Yes I think you're right, they may only be able to order a fresh 1st tier tribunal. This would be great actually as the GP info would then have to be considered. I'll update on how things go. Thanks for your advice.
Cheers,
Andrew.
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