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Thread: ESA MR Rejected - advice appreciated

  1. #1

    ESA MR Rejected - advice appreciated

    Hi,

    Basically I am a 35 year old who had failed back surgery (spinal fusion) and is now in a lot of pain. After recent MRI scans and a consultation with a spinal surgeon, I have two disc bulges and my facet joints are hypotrophic. I am being sent for a nerve conduction study and in the meantime the surgeon is going to give me injections at L3, L4 and L5 as well as a caudal epidural to help with pain.

    In March I was on so much medication that I actually became toxic and ended up in resus in A&E having multiple non-epileptic seizures and a prolonged QT interval (problems with the heart). They stopped all medication there and then and I went through withdrawal hell (fentanyl, morphine, gabapentin, diazepam, amitriptyline to name a few). I am obviously terrified of medication now and so the pain isn't being masked at all.

    I applied for ESA and went for a face to face assessment where the HCP seemed nice enough. Little did I know that she was writing things down and omitting important info. Eg, she said I sat for 52 mins during the assessment. Firstly, I was never in that long and secondly, I was in tears by the end of it and she actually said 'OK, lets stop this here'. The decision maker decided I get 0 points and to get an NHS funded self propelled wheelchair and miraculously I am fit for work. I was dumbfounded to be honest. Not only being told by a benefits system that I should be in a wheelchair at 35 (which actually has had a very negative effect on my mental health), but that none of the other things were taken in to consideration. The fact that I am so sore after a shower (if I'm able to have one that day), that I have to sit on a hot water bottle for an hour, that my sleep is so disturbed by the pain, that I need help getting my bottom half dressed. None of this seems to matter and I'm ok to get a job. I'm actually a trained psychologist and would love nothing more than to return to work and can't wait until I can do so.

    I obviously asked for a mandatory reconsideration and got the letter today that it won't be changed. It read like a template letter with just my name on it and none of the things I addressed in the MR letter were answered. I'm now at a total loss. For example, where the wheelchair is suggested, I said that this is out of the question as I can't sit for long due to the impact on the sciatic nerve and also the sacroilliac joints. I am claiming universal credit since the esa was stopped and getting fit notes from my GP, but now I have been sent their questionnaire (which I assume is the same as ESA50).

    Does anyone have any advice please? I feel like i'm having to become some kind of lawyer! I've been in touch with CAB and waiting to hear back from them, and I think I'll take to an appeal but will they overturn if they say I can work if I have a wheelchair? (I honestly don't think this is feasible).

    Thanks in advance to anyone who can help

  2. #2
    Senior Member nukecad's Avatar
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    Yes you need to appeal, with help from CAB.

    It is not unusual at all for a MR decision to look like a rubber stamp job.
    We see it all the time as do CAB and all other welfare advisors.

    The appeal tribunal is independent from the DWP and will listen to the evidence and facts properly.
    Around 70% of appeals are found in favour of the claimant.

    As they have also sent you a UC50 you do need to fill this in now, which means you are having a new assessment which will make a new decision
    However this should not stop you from appealing the one you have just had the MR for.
    The appeal will cover from your last assessment until they make a new decision and if the appeal is sucessful you will be backpaid any elements due.
    It can get a bit awkward with having an appeal and a new assessment going on at the same time, yiu just have to be careful which one any letters are refering to.
    I don't know everything. - But I'm good at searching for, and finding, stuff.

    Migration from ESA to Universal Credit- Click here for information.

  3. #3
    Thanks so much for that, I’ll continue down this road then. A quick question though, how do I deal with their recommendation to get a wheelchair?

  4. #4
    You need to show them why a wheelchair is inappropriate for you, backed up by medical evidence if possible.

  5. #5
    I think you have got the wrong idea about the wheelchair comment, they are not saying you need to be in one all the time.
    its a dwp denial they are saying if you used one for short periods at an employment then you could work i.e you could stand/sit at your work station and if needed use the wheelchair to mobilise around to the store cupboard for items.

    you need to explain in detail the reasons why you could not use one, upper body complaints with shoulders, arms, breathing, heart.

  6. #6
    Quote Originally Posted by slipmaster View Post
    I think you have got the wrong idea about the wheelchair comment, they are not saying you need to be in one all the time.
    its a dwp denial they are saying if you used one for short periods at an employment then you could work i.e you could stand/sit at your work station and if needed use the wheelchair to mobilise around to the store cupboard for items.

    you need to explain in detail the reasons why you could not use one, upper body complaints with shoulders, arms, breathing, heart.
    Thanks for the clarification. I was aware that they didn’t mean all the time. They suggested it could be left at the workplace (although how I’m supposed to get to work I have no idea!) My issue is that if I sit for any amount of time in one place, my symptoms get quite severe. The main place I can be is in a lying position but then I do have to try and move as that also stiffens my existing fusion. My question wa purely about what I needed to say to show that the wheelchair option wouldn’t make a difference. Hope this makes more sense.

  7. #7
    Senior Member
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    Hello Nicola80

    Welcome to the kafkaesque world of the DWP.

    The "imaginary" wheelchair that the DWP produce in reports needs to be counteracted by basically exactly the reasons you have already said, and everything else you have written on here.

    It is extremely frustrating - as most of us on this forum have found out at some point or another - to have what you have written in your ESA50 and subsequent Mandatory Reconsideration completely and utterly ignored.

    Basically the system is a lottery - and no of course that is not fair.

    See your claim through to a tribunal - which sounds scary but really isn't. A tribunal look at all the facts unlike the DWP.

    Good luck - please come back and let us all know how you get on.

  8. #8
    Thanks so much Buble48. I will definitely keep this updated and let others hopefully get some knowledge from it.

  9. #9
    Senior Member nukecad's Avatar
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    Don't forget that UC50, you do need to fill that in and send it off.
    If you fail to return it (or fail to go for a F2F if they ask you) they can automatically make a new decision that you are now fit-for-work, no matter what your doctor says.

    Yes it can seem a bit daft to have a new assessment while you are still appealing the old one but it can and does happen, even when it was all ESA with no UC involved.
    In certain cases it can be a good move.

    It is the same as an ESA50 but for universal Credit rather than ESA, the questions are exactly the same, the assessment is exactly the same, the points scoring etc. is exactly the same.

    If you kept a copy of your previous ESA50 you can use the same answers, but you might want to change them a bit to emphasize things that you want to point out more strongly now you know what the HCP/DWP response was to your last one.
    CAB can help with this if you can show them the old one, they can point out where you might have put things better. (Assuming they have time of course).
    I don't know everything. - But I'm good at searching for, and finding, stuff.

    Migration from ESA to Universal Credit- Click here for information.

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