My client was successful at appeal and was awarded 15 points and a recommendation to DWP that she is not reassessed for 2 years. This appeal hearing may well be very different to others since it was clear beyond any doubt that my client has serious mobility and other issues. In any case where it was marginal or where there was a need to argue the case I would be looking at case law for application of the descriptors.
The appeal tribunal was composed of a judge and a doctor. I was told by the clerk that there is hardly ever a presenting officer present.
The appeal panel had absolutely no interest in either the ATOS WCA medical report or the Decision Maker’s submission. I was also surprised that they were also not that concerned about the descriptors and their precise definition. They were interested in whether my client was sufficiently disabled to merit ESA looking at the whole picture. Once they had established that, they awarded points so that she would get the ESA award.
My client was questioned at a very fast pace by both panel members. They seemed to follow my client’s appeal request so this and further submitted evidence are important. There were ‘opaque’ questions. I suspect that it’s likely that the opaque questions derive from the appeal tribunals: the Decision Maker and the Work Capabilities Assesment’s HCP will follow the appeal tribunal’s lead.
Driving a manual car is about being fit enough to walk. Going to the supermarket is about being fit enough to walk, reach for and carry quite heavy packages if you do it without assistance. Keeping a cat is about reaching low for feeding and watering. Wearing a t-shirt is about reaching over your head. One that I really haven’t understood and that they’re really keen on is watching television. It suggests that you can stay still for a while but it’s only a suggestion. That you have time to watch television because the rest of your life is settled? I think that watching television is about wasting time but how is it interpreted?
[03/08/13 (UK notation)
Watching television is a vast subject that the tribunal panel would want to investigate in depth.
If you do nothing except watch television, I think that the panel will have little sympathy for you and even suspect illnesses to be self inflicted i.e. idleness, laziness and no exercise or interaction cause illnesses. Although superficially the tribunal panel and the whole concept of the Work Capabilities Assessment shouldn’t be concerned with causes, it will be.
Following a soap opera suggests that you’re able to keep appointments and function mentally fairly well at that low standard needed for soaps i.e. you’re able to understand, remember and follow a simple narrative.
Owning but not watching a television supports a claim of depression i.e. having no interest in anything through depressed emotional state. I suppose that only watching serious news-type programmes would also support a claim to depression.
The panel will be interested in the times that television is watched. If it’s late in the evening and early morning they may conclude laziness and idleness.
etc … ]
Although I was representing my client I said very little during the hearing. At the end of the hearing I tried to make some points. The panel were totally uninterested in my input to the point of being rude and shouting me down. This made me aware of the pressure that my client had been under: the pressure to conform.
The panel may have had no interest in anything I had to say because they had already decided and had time constraints. It’s a quick process that took us about an hour in total.