Employment and Support Allowance (ESA)
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I am convinced this is an error of law. Am I right or wrong?

gentlegee1976gentlegee1976 Member Posts: 34 Connected
  Hi All, 

I have CFS/ME and was finally diagnosed in 2017 after 5 long years of symptoms. My ESA was stopped following a deeply flawed WCA and I appealed to the FTT. I was awarded 12 points (6 for being unable to mobilise 200 metres and 6 for unrelated bladder problems). The case is now heading to the UT after permission to appeal was refused by the FTT. My question is this - 

During the appeal, the doctor commented that he believed that I had obstructive sleep apnoea and that I did not have CFS/ME. These comments are based on the letter from the hospital consultant confirming my diagnosis in 2017. The letter confirms my diagnosis but states that I may possibly have obstructive sleep apnoea as well, which contributes to my fatigue. The letter clearly states that the doctor suspects that OSA "contributes to my fatigue" as opposed to "causes my fatigue".

I told the doctor that I agreed that sleep apnoea would cause fatigue, but that it didn't explain my many other symptoms. The doctor did not reply to this statement. He did not tell me I was wrong, nor did he correct me.
I believe that these comments prove that either the doctor does not fully understand my condition or has not looked at the evidence in full.

In fact, in paragraph 54 of my statement of reasons, my diagnosis of CFS/ME (which was made by a specialist doctor and a hospital consultant/professor) has been completely disregarded by the tribunal, as they said that I claimed to have CFS, but from the overall evidence it was “inconclusive”.

I submitted to the UT that I have the following, non sleep-related symptoms of CFS/ME and that I have had these symptoms since 2012. I submitted that the medical evidence submitted to the FTT supports this.

These symptoms are -
Post exertional malaise (that is not relieved by sleep or rest).
Generally feel unwell (daily flu-like symptoms).
Muscle and joint pain, particularly back and leg pain.
Muscle cramps/muscle twitching.
Severe headaches throughout the day (not just in the morning).
Pins and needles in hands and feet.
Brain fog (significant difficulty trying to think and concentrate).
Nausea and Intolerance to bright lights and loud noises.

Surely completely disregarding someone's confirmed diagnosis means that the law hasn't been applied properly and the facts of my case are inconsistent with the FTT decision.

Thanks in advance, folks.


Replies

  • Cher_ScopeCher_Scope Posts: 3,760

    Scope community team

    Good afternoon @gentlegee1976 and I'm glad you found us.

    I've moved your post to our ESA discussion board where members with similar experience/relevant knowledge can help you with this question.  

    Wishing you luck with the outcome of the UT.
    Online Community Co-ordinator

    Want to tell us about your experience on the online community?  Talk to our chatbot and let us know.
  • janer1967janer1967 Member Posts: 10,200 Disability Gamechanger
    Hi a dand welcome to the community glad you have joined us

    I am sorry but I am not able to answer your specific question but I suggest you would benefit from seeking some advice relating to this maybe CAB or Welfare rights

    Also bear in mind a WCA is not about diagnosis but about how the condition affects you and your ability to do some type of work. More to do with the what your condition prevents you from being able to do

    I hope you find some answers to your question
  • gentlegee1976gentlegee1976 Member Posts: 34 Connected
    edited September 2020
    The reason I argued about my diagnosis was because of a UT decision. The decision (CE/1750/2012) which is attached as a PDF file, concerns a Mr H (who had a confirmed diagnosis of CFS/ME) and was appealing against the decision to put him in the ESA WRAG. He argued he should be in the Support Group instead. Judge Jacobs referred his case back to the FTT, referring to the following statement made by the representative of Mr H. -

    (See paragraph 29 of the attached UT decision)

    29. The evidence on Mr H’s health and his case on regulation 35(2) is set out at its clearest in paragraph 7 of Mrs Mitchell’s application for permission to appeal, to which the judge referred when giving permission:

    “We consider that Mr H… satisfies Regulation 35 because of the nature of one of his medical conditions, Chronic Fatigue Syndrome (CFS/ME). Mr H… is unable to undertake any kind of activity without becoming depleted of energy, so exhausted that he needs to sleep for 18 hours a day.  He is rarely able to leave his house, and, when he goes out, he is driven by his carer, and most walking is just transferring to and from the car. 

    If he is required to undertake work-related activity, such as attend an interview at the Jobcentre, he needs to plan in advance, banking energy by resting more than usual, and requires assistance to get to the appointment. 

    Bearing in mind that Lord Freud has stated publicly that any such activity must be capable of being carried out reliably, repeatedly and safely, we contend that Mr H… is unable to carry out work-related activity predictably or with consistency. 

    If he pushes himself to become active above his usual limitations, he becomes excessively exhausted, with increased levels of pain; if he were to do this repeatedly, there would be a serious deterioration in his medical condition of CFS/ME.”

    A confirmed diagnosis would enable me to argue that the above statement applies in my case. Personally, knowing my illness as well as I do, I believe it applies strongly. However the tribunal doctor rejected my diagnosis, leading to the problems that I've described above.

  • woodbinewoodbine Community Co-Production Group Posts: 4,127 Disability Gamechanger
    hi @gentlegee1976 I have to agree with @janer1967 that the WCA is not about diagnosis but about how your illness affects your ability to work, and whilst i'm no expert i'm not sure I see an error in law.
    "Putting a child into care, isn't caring for a child" (T.Rhattigan)
  • gentlegee1976gentlegee1976 Member Posts: 34 Connected
    I have argued (amongst) the following in my UT submission -

    1. The tribunal did not apply the law correctly (reg 35 should have been applied).
    2. The tribunal ignored or intentionally overlooked vital evidence (my diagnosis).
    3. They ignored the fluctuating nature of my illness.
    4  They ignored relevent case law.
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    Hi and welcome,

    I just want to ask are you getting expert help with this? If you're not then i'd advise you to do that. As no one here knows anything about your case then it's extremely difficult to comment. Start here. https://advicelocal.uk/find-an-adviser

    Proud winner of the 2019 empowering others award. This award was given for supporting disabled people and their families for the benefit advice I have given to members here on the community.
  • gentlegee1976gentlegee1976 Member Posts: 34 Connected
    I have previously sought advice from the Disability Law Service as well as Fightback 4 justice. Both organisations agreed I had put together a good UT submission, but I just wanted the opinions of people here on the forum as well. Thank you for asking.
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    I won't comment on fightback but i will wish you good luck.
    Proud winner of the 2019 empowering others award. This award was given for supporting disabled people and their families for the benefit advice I have given to members here on the community.
  • gentlegee1976gentlegee1976 Member Posts: 34 Connected
    Thank you Poppy.
  • emmarenshawemmarenshaw Member Posts: 712 Pioneering
    Welcome to the community @gentlegee1976 I hope it all goes well. Please keep us posted with how you are getting on.
  • gentlegee1976gentlegee1976 Member Posts: 34 Connected
    Will do, thanks.
  • gentlegee1976gentlegee1976 Member Posts: 34 Connected
    Hi All, Just a quick update on what's happening.

    The Upper Tribunal have granted me permission to appeal against the decision to stop my ESA payments. The Judge identified numerous errors of law in both the FTT's decision and the susequently issued Statement of Reasons. The case is now awaiting a written response from the representative of the Work and Pensions Secretary. This should take place within a month. After this has been done, I'll then hear back from the Upper Tribunal regarding what happens next.

    Doesn't mean that I've won yet, but it's not bad news either.
  • janer1967janer1967 Member Posts: 10,200 Disability Gamechanger
    Hi glad to hear things are moving forward for you, keep us updated 
  • gentlegee1976gentlegee1976 Member Posts: 34 Connected
    The judge has allowed my UT appeal and has sent the case back to the FTT, with a new hearing in front of a different doctor and a different judge. I'm not sure what the success rate is for these new FTT hearings, I just need to wait for a new date/hearing.
  • janer1967janer1967 Member Posts: 10,200 Disability Gamechanger
    Glad it gas been allowed I'm not sure either of success rates but fingers crossed for you 
  • gentlegee1976gentlegee1976 Member Posts: 34 Connected
  • chiariedschiarieds Community Co-Production Group Posts: 8,639 Disability Gamechanger
    Thank you very much for letting us know @gentlegee1976 :)
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