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Incapacity to ESA Appeal - Illiterate and Mental Health Issues
Hello there. This is my first post to the forum so please be gentle with me.
I am representing a client at Tribunal who was in receipt of IB. During the migration process the client completed ESA50 and a year later attended a WCA.
The client is in their 50’s and is unable to read or write (other than their name). There has been a history of mental illness - depression and suicidal tendencies.
To cut a long story short, this person has only worked in one job as a car Valletta but owing to difficulties with paperwork and mixing up the keys was let go from this job.
The DM rejected the applicant’s claim and placed more weight on the WCA Medical report as opposed to the ESA 50 owing as this was more recent.
The assessment was carried out by a nurse who made an interesting statement inferring that their ‘Depression was a factor of their dyslexia’. - Being Dyslexic myself, I would argue that being Dyslexic is a separate issue from being illiterate.
The client has not seen their doctor regarding the mental health recently, and this was part of the reason why the claim was turned down.
I am looking at regulation 35, and I have also looked to see if there were other cases where a claimant was illiterate and had successful ESA claim but have yet succeeded in finding this.
Any advice or comments would be much appreciated.
I don’t think that illiteracy on its own would be regarded as grounds for receiving ESA unless the illiteracy is due to a severe learning disability. Dyslexia is not normally classed as a learning disability but as a specific learning difficulty because the assumption is that the person could learn to read and write with specialist support - and dyslexic people usually have at least average IQ.
I agree that dyslexia and depression should not be automatically linked together - they are 2 separate conditions.
However the depression could affect your client’s ability to concentrate sufficiently to be able to respond to tuition and to learn simple tasks.
Couple of observations. First is that you need to have a specific physical or mental health condition in order to establish entitlement to ESA. You say your client’s depression hasn’t had any formal treatment for a while now, so looking for point scoring descriptors on the basis of depression might be difficult, unless you have evidence of repeat prescription medication, for example.
Notwithstanding this point, dyslexia is recognised as being a learning difficulty, so that might open the door to consideration of mental health descriptors on that basis? You’d still need to show how and where your client scored points of course.
Otherwise, you need to look at regulation 29 first, before looking at regulation 35. The latter deals with whether someone should be placed into the support group due to significant risk if they were found not to have limited capability for work-related activity, whereas the former helps someone establish entitlement to ESA in the first place if there were to be a significant risk to their health if they were found not to have a limited capability for work.
There’s some case law on dyslexia relating to DLA entitlement but nothing I’m aware of in respect of ESA.
You’re right that Dyslexia is not illiteracy and it will be difficult to prove that a man of that age was suffering dyslexia rather than simply being illiterate.
That leaves us with the depression but a history of depression is not a current diagnosis of depression; you’d need to show a history and thus a risk of recurrence, also suicidal thoughts are not suicidal actions. Proving a risk of recurrence will be a medical records job if his GP’s not seen him for a while. I’d probably be looking to get his paper records which might cost £50 but it’s worth spending the money if he’s got a significant history.
If he’s not had any secondary mental health care I’d be pessimistic of the chances of the appeal succeeding although if it were my case I’d probably still argue it.
The one ray of light is that the bar for what might constitute a “substantial risk” may have shifted; it is now “a risk that cannot sensibly be ignored”; so arguably a risk of recurrence might be enough for reg 29 & 35 to bite; if not if there is a history of deliberate self harm you’re probably over the hill so long as it’s not particularly remote..
Can you post a link to the shifting definition of substantial risk please?
See IM v SSWP - http://www.osscsc.gov.uk/Aspx/view.aspx?id=4295 - specifically para. 65.
Chazzywazz - I am sure you will do your best with this case, but Redcar has a CAB that will have experience in representing in this type of appeal. Might be worth seeing if they have capacity to take this on?
Chazzywazz - I am sure you will do your best with this case, but Redcar has a CAB that will have experience in representing in this type of appeal. Might be worth seeing if they have capacity to take this on?
Hi thanks for this. I used to volunteer there and they have no provision for representation.
Will contact the clt again and double check go through required medical evidence.
I must say that I’m impressed that an MP’s caseworker is going to such lengths.
I must say that I’m impressed that an MP’s caseworker is going to such lengths.
my local MP was advertising recently for caseworkers and specifically wanted people with welfare rights/immigration experience. probably makes up a huge % of the casework now so maybe makes sense for them just to employ a wro.
I must say that I’m impressed that an MP’s caseworker is going to such lengths.
Many thanks for your kind words. It’s just seems the natural thing to do to try and bring the respect and dignity people deserve.
I have some CAB experience, but like many others, I like to see this as a continuing development, hence my joining this site so I can read, discuss and be advised as appropriate. :)