The sequel to an earlier article ATOS DWP appeal :: How it works, this article suggests ways of appealing against ATOS and DWP decisions that disabled people do not have limited capability for work. A final article describes the appeal hearing.
Citizens Advice Bureaus, Welfare Rights Officers, Legal Advice Centres are all overwhelmed by the demand for their services. It is very unlikely that anybody is able to help you. You have to do it yourself with the help of a few friends, family or colleagues. This is where being a member of some group helps.
There are now many resources on the web e.g. this one. If you’re not able to use the web yourself, ask somebody who can. For previous decisions just enter the reference into a search engine.
Once you’re told that you’ve been found to have failed the Work Capabilities Assessment you have a month to appeal. The article linked above gives good advice on a general request for appeal. Also ask for reasons for the decision if they have not been sent with the decision.
When the bundle (the Decision Maker’s response) arrives you need to go through it carefully. It’s detective work piecing together the arguments employed.
I personally find that missing documents are very revealing – it’s worth being suspicious of the Decision Maker instead of assuming that they’re absent accidentally. In my friend’s bundle two documents are missing: the notification of the decision with reasons attached and a simple sick note by my clients GP that accompanied her request for appeal.
There are many errors in the missing notification letter e.g. stating that you need to score 15 points and therefore providing misleading legal advice on the issue of exceptional circumstances. However, I think that the real issue is that there is a list of descriptors – admittedly with inaccurate, summarised descriptors – which is both helpful to the claimant and highlights quite clearly one descriptor which should have but has not even been considered.
The missing simple sick note is missing because it’s medical evidence from a qualified, experienced GP that is familiar with my client’s condition that has a named medical diagnosis. The Decision Maker is supposed to consider all evidence. To include this document would highlight the fact that the Decision Maker has totally disregarded my client’s GP’s medical evidence without providing any justification or reasoning.
My client has been awarded 6 points for having to raise from being seated because of significant discomfort or fatigue after 15 minutes. The Decision Maker agrees with Atos Health Care Professional that my client can sit for between 30 and 60 minutes without having to move because of significant discomfort or fatigue despite having to move after 15 minutes! This is what you’re up against.
That should be 9 points not 6.
Looking at the HCP’s descriptions of my clients abilities we notice that she should have been – but has not been – awarded 6 points for failing to raise either arm above head height.
Then there’s 9 points for failing to climb two steps with the help of a handrail. Hold on, it says my client can climb two steps where there are two handrails. How many steps or stairs do you see with two handrails? The descriptor’s definition is a handrail, that’s one handrail not two. They have these definitions to be precise.
The score so far looks like 9 + 6 + 9 = 24. That’s 9 more than the 15 needed and this is on Atos’s medical report as it stands. I wonder why the Decision Maker didn’t notice this – he is trained, professional and experienced after all. Perhaps he just didn’t notice by accident again?
What really pisses my client off is that she’s been awarded nothing for mobility (moving with or without a manual wheelchair or other aid on a level surface). The Decision Maker has decided that she can repeatedly walk 200 metres without stopping because of significant discomfort or fatigue). The distances vary: less than 50 metres, 50 to a 100 metres and 100 to 200 metres. Over 200 metres repeatedly is nothing. This is the same descriptor as the steps so the 9 for the steps would go if she was awarded 9 or above.
My client’s problem is that she completed the ESA50 very poorly with many “It varies” and incomplete lengthy answers to questions. For the walking she’s said it varies but then failed to say why she had to stop to rest. The Decision Maker should have asked for clarification but for some unknown reason decided instead that she had absolutely no problem repeatedly walking over 200 metres. The reasons for this? She drives a manual car and shops at a supermarket!
So at the appeal we have to point out that my client’s right hand side is her weak side, the side that she really has trouble with and manual cars have clutches and gearboxes on their left hand sides. We will also be pointing out that it’s a very small supermarket involving about 100 metres walking accompanied by a friend who does the reaching and emptying of the shopping trolley at the checkout, the packing of bags, loading and unloading of car, etc and that it doesn’t really indicate that you can walk 200 metres without stopping because of significant discomfort or fatigue because when you go shopping you are continually stopping. This is not rocket science is it?
As I mentioned earlier the Decision Maker has not considered my client’s GP’s evidence preferring BS like this instead. I also said that my client had answered the ESA50 badly with many “it varies”. Look at what my client’s GP says: “VERY VARIABLE SYMPTOMS, SOMETIMES COMPLETELY IMMOBILIZED” and “SEVERE BACK PAIN ON BAD DAYS IMMOBILISED”. There is more but I don’t expect any real problems at appeal.