ESA: Old Descriptors v. New descriptors (at Appeal

Apologies for the length of this. But it's well worth reading! Honest.

I recently had my "medical assessment" under the old-style descriptors, and received ZERO points. I am putting together an appeal statement which I hope might get the decision changed on review (a boy can dream!) or, failing that, give my tribunal a good grasp of the situation in advance (sort of 'soften them up').

I have CFS/ME. Although I can do most mild activities for short periods, the total time is limited to about 2 or 3 hours a day. If I exceed this quota, my health suffers - I get exhausted and exacerbate various symptoms - possibly for several days afterwards. Therefore I believe it's fair to say that, on average, for 80% of each day, I cannot do any activity which requires even minimal exertion.

The 'old style' descriptors don't cater for this. Can I walk 200m? Yes, I can. Can I sit upright for 30mins? Yes, I can. But not for 80% of the day. I made this point over and over during the medical exam. To no avail. The report completely omits what I said.

I see the 'new style' descriptors are far more relevant to my case:
such as
* Cannot repeatedly mobilise 100 meters within a reasonable timescale because of significant discomfort or exhaustion"
and
* Cannot, for the majority of the time, remain at a work station (either standing unassisted or sitting) for more than 30 minutes, before needing to move away in order to avoid significant discomfort or exhaustion.

Should I couch my appeal letter in terms of the new-style descriptors? Or am I trapped working with (or rather against!) the old-style descriptors.

Both under the old test and the new test, you have to be able to carry out activities reliably, repeatedly and safely.

Survivor wrote:

Both under the old test and the new test, you have to be able to carry out activities reliably, repeatedly and safely.

Thanks for the info, Survivor.
Can I ask where that is specified for the old-style tests, please? It would be useful to refer to it and/or use the exact wording in my appeal statement.

And I'd still be interested to hear from anyone else who has had to argue a similar case in applying for ESA (or IB, I guess).
Thanks,
Andy.

Hi Andy,

If you look in the Employment and Support Handbook in the members area for the old test you will find that Atos health professionals are advised that they must take these issues into account.

There is case law relating to the PCA for incapacity benefit which has been accepted by the upper tribunal as applying to the WCA as well which deals with issues such as reasonable repeatability.

You should find that the tribunal are very aware of the importance of being able to carry out an activity more than once.

Good luck,

Steve

Hiya,

I have ME/CFS too so I know how you feel, I found even the new form quite difficult to fill in! But I agree the new descripters are a bit better for us, but as someone else said it should have been the same for the old form but it's not explicitely said so you never know that that is the case!

Also there is this statement from the government which is very relevent for us which I guess you could quote:

"We recognise that fatigue and pain can severely limit someone's capability for work, and this is reflected in the Work Capability Assessment. Because it is important to take account of fluctuating symptoms when assessing capability for work, the Work Capability Assessment is not a snapshot view of a customer’s ability to undertake day-to-day activities at any single point in time, but rather an assessment of their ability most of the time. If a customer is unable to complete an activity repeatedly, reliably and safely, then they are considered unable to complete it at all."

taken from here:

www.hmg.gov.uk/epetition-responses/petit...px?epref=chronicpain

good luck x

@Steve.

Thanks. Found it. Looks really useful. In case anyone else is looking for it, it’s section 3.1.9 “Variable and fluctuating conditions” (pages 52-54)

Am I right in thinking that the answer to my original question is “You have to do the appeal in terms of the old-style descriptors.”
It would just be so much easier to use the new ones! (He whinged)

Andy