Grounds for ESA appeal

Hello all. I have some questions which I believe are of general interest - but I think I need to give the individual background background for context.

My wife Polly has battled with ME/CFS since 2003, with the support of a very flexible employer. The condition has increased in severity over the last couple of years, and this she has become too ill to do her (part-time) job. In September she went onto half pay, and applied for ESA.

We completed the ESA50 with the help of the information in the guides. This was very useful – our GP has been trying to get Polly referred for specialist treatment for about eighteen months, but has just been ‘bounced’ by various consultants and the PCT, so we have very little medical correspondence to convey the severity of her condition.

Polly had her ATOS assessment on 9th December. By that time her condition had deteriorated further. The medical examiner (a nurse) showed some sensitivity, and did not ask her to carry out any physical tests. The nurse told us that she was recording on her system that she felt it ‘inappropriate’ to carry out any physical examination.
I had hoped this would put her in the Support Group (where she clearly belongs, as she only has enough energy at present for 1-2 hours of activity a day, and even travelling to a place of work is out of the question, let alone working). But she has been placed in the Work-Related Activity Group.

She has also been turned down for DLA (which we are appealing). The whole process is very stressful and having a negative effect on her health.
I have to take her to a ‘Pathways to Work’ interview this Friday 31st December. (She is actually still in employment at the moment, although this looks certain to end soon).

My questions are:

I had thought we should appeal the ESA decision on the grounds that she should be in the Support Group because she cannot walk any distance at all without severe discomfort, and that we would present the nurse’s decision not to subject her to a physical examination as evidence of the severity of her condition. But now, in view of the adverse effect that these procedures are having, is this the kind of situation where would it be more appropriate to appeal under the ‘exceptional circumstances’ rules (i.e. not putting her in the Support Group creates a ‘substantial risk to her health’?

Could we appeal on both grounds at the same time?

Would it help the appeal to get our GP to write a letter confirming that (a) she cannot walk any distance without sever discomfort and (b) in his opinion, not putting her in the Support Group would pose ‘a substantial risk to her health’, even though this would clearly be ‘new information’?

If we appeal, does she still have to attend these interviews, which are likely to prove stressful and harmful?
Is there any way I can get her DWP contact records changed, so that they don’t phone her at home, but contact her through me at work?

My thanks in advance for any comments.
Peter

You can appeal on more than one ground, so there's no reason why you shouldn't appeal both because she cannot walk far and also because of the substantial risk to her health.

An appeal would not operate to waive the interviews, but it is possible to get them deferred.

I'm not aware of any standard procedure for changing her contact details, but if they are unhelpful, you may want to remind them that in providing a service to her, they are obliged to make reasonable adjustments for her disability and that this would in her case involve routing telephone calls via yourself.

Be aware that an appeal against an ESA decision in the hopes of getting put into the support group runs the risk of losing the ESA altogether.

PeeDeeGee wrote:

Hello all. I have some questions which I believe are of general interest - but I think I need to give the individual background background for context.

My wife Polly has battled with ME/CFS since 2003, with the support of a very flexible employer. The condition has increased in severity over the last couple of years, and this she has become too ill to do her (part-time) job. In September she went onto half pay, and applied for ESA.

We completed the ESA50 with the help of the information in the guides. This was very useful – our GP has been trying to get Polly referred for specialist treatment for about eighteen months, but has just been ‘bounced’ by various consultants and the PCT, so we have very little medical correspondence to convey the severity of her condition.

Polly had her ATOS assessment on 9th December. By that time her condition had deteriorated further. The medical examiner (a nurse) showed some sensitivity, and did not ask her to carry out any physical tests. The nurse told us that she was recording on her system that she felt it ‘inappropriate’ to carry out any physical examination.
I had hoped this would put her in the Support Group (where she clearly belongs, as she only has enough energy at present for 1-2 hours of activity a day, and even travelling to a place of work is out of the question, let alone working). But she has been placed in the Work-Related Activity Group.

She has also been turned down for DLA (which we are appealing). The whole process is very stressful and having a negative effect on her health.
I have to take her to a ‘Pathways to Work’ interview this Friday 31st December. (She is actually still in employment at the moment, although this looks certain to end soon).

My questions are:

I had thought we should appeal the ESA decision on the grounds that she should be in the Support Group because she cannot walk any distance at all without severe discomfort, and that we would present the nurse’s decision not to subject her to a physical examination as evidence of the severity of her condition. But now, in view of the adverse effect that these procedures are having, is this the kind of situation where would it be more appropriate to appeal under the ‘exceptional circumstances’ rules (i.e. not putting her in the Support Group creates a ‘substantial risk to her health’?

Could we appeal on both grounds at the same time?

Would it help the appeal to get our GP to write a letter confirming that (a) she cannot walk any distance without sever discomfort and (b) in his opinion, not putting her in the Support Group would pose ‘a substantial risk to her health’, even though this would clearly be ‘new information’?

If we appeal, does she still have to attend these interviews, which are likely to prove stressful and harmful?
Is there any way I can get her DWP contact records changed, so that they don’t phone her at home, but contact her through me at work?

My thanks in advance for any comments.
Peter

Hi,

Although firstly we must use the caveat in the FAQ's about answering individual cases without sight of or knowledge of both the claimant and his/her case papers, in light of your first question, you can use as many grounds as you wish to include in the appeal to show your wife satisfies the various descriptors relating to the ESA Support Group.

Obtaining evidence from her GP to help with showing in his opinion your wife meets or surpasses the descriptors is acceptable.

Sadly whilst going through the appeal process she will have to attend the various Work Related Interviews she is asked to attend unless there is a good reason in which case they maybe deferred but it is at the discretion of the DWP.

Your wife can write to the DWP and request that all contact is made by letter. Unless you have such as a power of attourney over your wife's affairs they can decline to contact you as your wife is the claimant and in effect it is a matter between herself and the DWP.

Pete


Edit - sorry Survivor - your post wasn't there when I started to type.

Pete

It looks like Pete and I are in agreement here.