ESA Appeal Tribunal

Approx 5 years ago I was diagnosed as having Bronchiectasis (a COPD disease similar to cystic fibrosis).
This is an incurable lung condition which in short gives me a chest infection every 2 months and I have to control it with a good deal of daily medication and physiotherapy to avoid pneumonia.
I was able to work from home to manage my condition, but eventually the number of times I was sick was too much for my employer and I had to leave.
I qualified for Disability Living Allowance because my wife has to care for me through the day with physiotherapy to assist clearing my chest and avoiding complications.

I applied for Employment Support Allowance (ESA) and was on assessment phase. I then attended a medical and scored zero points.
The reason being is that the medical form is not designed to acknowledge a variable illness such as mine. i.e. can you walk 200 yards without breathlessness?.Yes – the majority of the time I can, however when I am ill which is regular, I can’t. The form doesn’t take the later into account.

I appealed and provided the tribunal with supporting documents from my Respiratory Consultant, Physiotherapist and my GP (copy attached to give you an idea of my condition) and was expecting to have to prove limited capability for work and be able to join a work related support group.

At my tribunal today, the judge stated that he accepted that I had a limited capability for work – BUT, due to the letter of the law, had to adhere purely to the medical questionnaire score sheet. Because of this my appeal failed.

It was my understanding that ESA was to assist people with limited capability for work and offer various support groups to aid people like myself in obtaining and sustaining at least some type of work.
What was the point in my bringing along evidence of my condition and its impact if the tribunal is not going to use it’s own considerations to decide if I have limited capability for work or not. And even if it decides I have – as it did in my case, but they still can’t offer me ESA as the medical form has to form the basis of the case.
Surely, the medical questionnaire should be a ‘tool’ to assist in the assessment as to my capability. It clearly is not ‘fit for purpose’ in my case and the tribunal clearly understood this. Why then, were they not able to apply the spirit of ESA and grant my request to be on a work related support group? If they are unable to do this, there does not seem to be any point in having an ‘considered’ appeal process at all.

Any advice on what I should do now?
Is it worth appealing to the Upper Tribunal?

Hi David,

The tribunal can only award points in accordance with the descriptors set out in the law, it's true.

But yours sounds very much like a case where the exceptional circumstances rules should have been considered - and applied - by the tribunal. It does sound like there would be a danger to your health if you were found capable of work.

It would certainly be worth considering appealing to the upper tribunal. The first step would be to ask for full written reasons within the time limit. See our guides for more details.

Good luck,

Steve

Thank you for your advice.
It seems that common sense could have been applied - bus was not. If the medical questionaire is the only thing that applies, then (with respect to anyone with the condition) even if I was diagnosed with terminal cancer, there is every chance I would fail to amount sufficient points until the latter stages of the condition.

As well as considering the upper tribunal, i'm not sure if I should also consider reapplying for ESA? How long I would have to wait to do so? and is there is any point unless there is a fundemantal change in my condition that would effect the medical descriptors?