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Thread: ESA Tribunal as bad as the ATOS medical!!!!!

  1. #1

    ESA Tribunal as bad as the ATOS medical!!!!!

    Well my partner had an ATOS medical a little over 13 months ago and had the tribunal last Friday. She was on IB\IS when the ATOS medical via DWP awarded her 0 points. She was then placed onto ESA during the appeal process which changed to 1 of the other ESA benefits last month as she (joint claim partner claims for me to) had been on the original ESA claim for over the 12 months since she lodged the appeal against the ATOS medical 13 months ago.

    1 point here is as part of the original appeal to DWP 12 months ago my partner pointed out that ATOS had claimed as part of the process to gather evidence for the initial medical and to then send the report and information to DWP that they had requested medical information from my partners doctor etc. We knew this can't have been true as our doctors practice charges for these and had they been requested my partners doctors practice would have contacted her with regards to the payment. So my partner checked 3 separate times with the doctors and they confirm they have had no contact off ATOS at any time for my partners medical information. DWP in there reply state that ATOS were unable to locate or provide any evidence or proof that they did request medical information about my partner from her doctors, but stated is was up to my partner to prove this. DWP pretty much confirmed ATOS had lied by saying ATOS have no record of having requested something they claimed they did for part of there medical report to DWP. We also have it in writing off the partners doctor that they have received no contact off ATOS with regards to my partners medical information at any point, what more proof is needed than that that ATOS lied to make a false 1 sided report to DWP in the first place and never followed procedure?.

    So the tribunal was last Friday, at the previous tribunal about 3 years ago she won that time with several points more than was needed, not so this time. We only just got the partners medical information the night before as there was issues of the doctors originally wanting £50 for the medical information which we never had but the day before we fought with them over this charge and in the end she got a more basic medical records thing (the exact same sort that was used at a previous won tribunal) for £15. My partner also got another written note off the doctor confirming that ATOS had never contacted them requesting any information about my partner.

    My partner took this last minute medical information and letter (about 10 pages all together) with her and met her representative from a local charity at the tribunal building before it was due to start. The tribunals clerk (or whatever they are called) took a copy of this but was unsure on if they would have time to consider the information before the tribunal had to start. My partners representative felt it might have to be adjourned as the information was only took and a copy made 10 minutes before the tribunal started. It was thought best to leave it to the tribunal to decide on if due to this additional information that if it would need to be adjourned. Which once we went in the tribunal decided to go ahead anyway claiming they had looked at and considered all of the provided evidence (but never directly mentioned the new additional medical information and note regarding ATOS). But on reflection they can't have properly looked at about 10 sheets of medical information and a letter as by the time the tribunal got there copy it can't have been more than 5 minutes before we was called in for the tribunal and they sure never looked at the medical information during the tribunal. I'd guess a bad judgement call by the tribunal to not adjourn unless they decided to put her provided medical information aside and to proceed without looking at and considering it?.

    The tribunal never seemed right to me from about half way through, just a feeling I got and a change of feeling I was picking up from the doctor there asking all the questions and how she was asking them. Almost like they were moving outside of the scope of how or what they can ask and talk about with regards to these tribunals. I pointed this out after the tribunal to my partners representative that something seemed odd, like they had already made the decision before we even got in the room and that some of the questions were very ATOS like compared to tribunals I've been to in the past. 1 strange thing was the doctors questioning of my partners ability to sit still for about 45 minutes compared to what was being said to some of the questions. The doctor claimed they observed my partner sitting totally still during the tribunal, she never, she sat forwards several times due to discomfort and was wiggling her bum to try and make herself comfortable many times as being a larger person never fit into the chair to well anyway. She was also highly upset and just trying to concentrate on what they were asking her. Also strange was there closing of the tribunal before I got the chance to say a few things at the end like I'd expressed an interest in speaking before the tribunal started. Like I said, it was like they had decided on the outcome before the tribunal even started. In fact there decision notice came less than 5 minutes after the end of the tribunal to which again seems way to quick considering there extra information that was provided at the start.

    They awarded zero points and totally upheld the ATOS report and the DWP decision and they never even addressed the issue of if ATOS broke procedure by making false claims of having requested medical information they never and lied about yet based there report on if they did etc. Tribunals impartial, not any longer by the looks of things. Of cause we won't get anything in detail for several weeks when the requested statement of reasons turn up. But here is what the decision notice my partner got after the tribunal said which indicates little and covers only part of her conditions:

    1-The appeal is refused.

    2-The decision made on (date) is confirmed.

    3-(my partners name) is not entitled to ESA.

    4- In applying the Work capability Assessment 0 points were scored from the activities and descriptors in Schedule 2 of the ESA Regulations 2008. This is insufficient to meet the threshold for the test. The Tribunal considered Regulation 29 and found it did not apply in this case.

    5- No Schedule 3 descriptor applied. Whilst the Tribunal accepts that (my partners name) has asthma, diabetes, anxiety/depression, stress incontinence, musculoskeletal problems the nature and extent of the resulting limitations are insufficient to score the required number of points. In reaching its decision the Tribunal placed particular reliance upon the evidence of the Appellant and the totality of the evidence within the claim pack.

    Anyone got any ideas or has similar things happened to others at tribunals recently as non of what went of last Friday makes ANY sense at all. Even my partners representative was highly surprised the tribunal upheld a zero points award than award her any points at all.

  2. #2
    The best practical advice I can offer here is, as the actual decision occurred more than 6 months ago, get your partner to discuss her condition with her GP if they are of the opinion that she is unfit for work and unable to sign on for JSA put a new claim in immediately.

    The problems that she has with/and emanating from the failed Appeal are extremely complex and you will need Expert (not just professional) advice to deal with that properly and it can take a very long time.

    Good Luck to You.

  3. #3
    Sorry to hear you had a bad Tribuanl experience. Think putting in a new ESA claim and starting again is probably the best idea here. ESA assessment rate will again be paid until another assessment is carried out. Meantime you need to get really familiar with the ESA descriptors which score points.

    The ESA is different from the IB in that the medical conditons themselves don't score any points, it's the effect on someone's capability to work and how the condition(s) affect them which score descriptor points.

    Can say as a long term insulin type 1 diabetic, having diabetes on its own doesn't score any points. Unless it is poorly controlled eg Brittle, or there are severe long term complications caused by it. Even then it's not the diabetes itself but the effect of the complications which may score points. It's much the same for stress incontinence, it won't score any points unless it is so bad that a change of clothing is needed. the DWP have decided pads can be used and easily changed etc, thereby maanging the condition. While I'm sure anyone with the condition dnition wouldn't agree the problem was so easily dealt with. This is the problem with the ESA descriptors , some are really tough. others verge on being inhumane.

    Tribunals tend not to be very interested in the wrong doings and deceit of ATOS, as they are there on the day to make a fresh decision based on all the supporting evidence, and what is explained by your partner. While I appreciate ATOS didn't contact your partner's GP for an ESA113 report , if they actually had, the DWP would have paid for this report as they asked for it, not your partner. GP's will charge for any report you do ask for.

    It's also possible to appeal to the 2nd tier Tribunal if you feel the 1st Tribuanl made an error of law in not reading or recognising the supporting evidence your partner presented. But it would depend on whether or not the report confirmed your partner met any of the descriptors you feel she does. General reports unfortunately tend to be just that, too general to confirm descriptors fit. You'd definitely need expert help to do this, and as I don't think you get paid when appealing to the upper tribunal, you'd still need to put in a new ESA claim anyway.

    Get a new sick note, start another claim then take a couple of days to get the annoyance and frustration out your system, before deciding on what to do about the Tribunal quality or lack of , if anything. Good Luck.

  4. #4
    I was waiting for other people to come on and say something.

    You know the mistakes you made and your partner, you tried to do it on the cheap by paying for a second rate evidence, which then was read by the doctors, the review, and the of course the tribunal.

    Giving the tribunal the ten page letter on the day was your error not theirs, you should have sent it weeks before, you failed.

    These tribunal look at the evidence and on the whole they do a good job with sometimes 70% of people winning, sadly you failed by trying to save money on a medical report.

    Now then the points you say your partner says she has diabetes, so have millions of other people who carry on working, you have to show the tribunal how it affects her and to what degree.

    Then you say your partner has incontinence problems fine is she under a consultant has she been given medication or treatment operations or been shown how to use a catheter, just saying she wets her self would be totally ignored unless you can show evidence of the treatment.

    Anxiety well show me a person who is not when going to a tribunal, so again you have to show with evidence the long term problems.

    Now then you say she wriggled in the chair, you said she leaned forward, and you said her weight and size, well I suspect the tribunal would be asking what is she doing to get her weight under control, is she medically obese is she trying, now if you can show medical evidence that she cannot walk far, but I take it she walked into the tribunal.

    You do need to I suspect re-apply for ESA but this time you need to seek advice from the start filling in the form and sending evidence which is really really good not saving £35 was it worth it.

    You need evidence on all aspect and if your partner is not seeing specialist for her diabetes her incontinence see your GP get her into these clinics.

  5. #5
    Thanks for the replies, first off they never acknowledged a number of her other medical conditions in the decision notice after the tribunal, it's not just what they mentioned. There are other conditions to that what the tribunal didn't mentioned. Secondly there is sure no doing it on the cheap as far as getting medical records was concerned and I take some offence to the suggestion that was the reason we got a more basic thing. How many people on benefits can afford £50 for detailed medical information just like that? as we sure could never pay such money just like that. Must be very lucky if some can. The more basic thing at £15 was all that could be afforded at the time, but that in itself which did detail medical issues should based on a previous tribunal have been enough.

    Weather it was our error or not in only getting even the more basic thing medical notes for my partner the night before and presenting them to the tribunal just before was an error seeing as it was the earlyest we could get anything seeing as before this they refused ANY medical information for less than a £50 payment is debatable seeing as the tribunal could have been adjourned to a later date to take the medical information into account, my partner never asked for it to go ahead regardless the tribunal decided to go ahead anyway.

    But I'd have thought that there could have been an error of judgement by the tribunal in going ahead without this medical information or if they never took much notice of it?. We asked for my partners medical information to be took into account for the tribunal or for it to be adjourned while they look at and consider it as I gather my partner had the right to do. My partners representative can confirm this to be the case and true and it was decided to see if the tribunal would need to adjourn to a later date for which was a surprise to us and my partners representative that they went ahead anyway. If as might be the case the tribunal took this information yet disregarded it without clarifying the issue at the start or asking about an adjournment then does this not mean the tribunal could have made an error here?.

    Also seeing as they don't look to have dealt with all her medical issues in the decision notice and totally upheld the ATOS report then I gather they, if they did look at and consider her medical information\notes have to give a very good reason to take the ATOS report over my partners own doctors medical information etc?.

    I guess my partner wont know for sure until she get the full statement of reasons via her representative.

  6. #6
    I understand your anger and frustration.
    But it's a done deal and time to move on. You can either appeal to the Upper Tribunal (UT) or as said, and probably wiser, put in a fresh claim.

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