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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

ESa appeal submission

Liz Yilmaz
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Lewisham Multilingual Advice Service, Catford

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Total Posts: 15

Joined: 17 November 2010

Hi everyone,

Can anyone assist with case law/s for ESA appeals? I need to make a submission for a client who has a medical condition since birth – his left hand lack the fingers. He made an ESA claim in November 2013 and he was awarded until he had the assessment appointment (26th march 2014), which he failed. His ESA stopped on the 28th of Apr 2014 on grounds that he is fit to work, therefore, he scored no points under any of the activity descriptors.

We made a Mandatory Reconsideration on his behalf on the 21st May 2014. The DWP responded with the Mandatory Reconsideration Notice (date 23rd June 2014) that they did take into the account all the information available -thus - did not change the decision. Upon receiving the Notice we lodged an appeal on the 21st July 2014 on behalf of client.

The Law the DWP applied to make the decision:
• Social security Act 1988 section 9
• Social Security (Credits) Regulations 1975 reg 8B
• Social Security and Child support (Decisions and Appeals) regulations 1999 reg 3
• Social Security and Child support (Decisions and Appeals) regulations 1999 reg 3ZA
• Employment and Support Allowance Reg 2008 reg 19 and 34
• Employment and Support Allowance Reg 2008 reg 29 and 35
• Welfare Reform Act 2007 s1, 2, and Schedule 1
• Social Security (Claims and payments) Reg 1987 reg 17(4)

His medical circumstances have not changed. He still lacks the fingers from the left hand limiting him to carry on everyday activities such as; cutting food, shopping, cleaning, picking up and carrying items or using hands for purposes of dressing and undressing, doing laces, wearing shoes and so forth.

Any relevant law and case law/s come in mind?

Liz Yilmaz
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Lewisham Multilingual Advice Service, Catford

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Total Posts: 15

Joined: 17 November 2010

many thanks in advance!!

MNM
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Solicitor, French & Co Solicitors, Nottingham

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Two cases on hand fuction are:-

CE/3466/2012
CE/3650/2012

These are for keyboard and mouse, but may offer a starting point.

Sorry but not to sure how to add these as links

Daphne
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rightsnet writer / editor

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links here -

http://www.rightsnet.org.uk/briefcase/summary/cannot-use-a-suitable-keyboard-or-mouse-means-inability-to-do-both-tasks

http://www.rightsnet.org.uk/briefcase/summary/inability-to-use-a-suitable-keyboard-or-mouse-descriptor-5d-where-claimant

although he will have difficulty as to score on the manual dexterity descriptors you have to be unable to do the function with either hand (the change to make use of the keyboard single-handed was in January 2013). So long as he can do it with one hand he will not score

[ Edited: 27 Aug 2014 at 10:28 am by Daphne ]
1964
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Deputy Manager, Reading Community Welfare Rights Unit

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As Daphne says, he is going to struggle to attract sufficient points to pass the WCA. On the face of it, I can see a potential for 6 points on picking up & moving things (the light but bulky object one as this tends to involve the use of both arms/hands) but other than that I’m struggling to see any relevant descriptors at all. It’s also difficult to imagine any Reg 29/35 argument either unless there are factors of which we are unaware.

Does he have any other conditions/health problems?

(incidentally, shouldn’t this thread be on the ESA board rather than the UC one?)

[ Edited: 27 Aug 2014 at 01:48 pm by 1964 ]
Liz Yilmaz
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Lewisham Multilingual Advice Service, Catford

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Total Posts: 15

Joined: 17 November 2010

it should - typed quickly & mistakenly! Thanks for the info.