I have a forthcoming appeal for ESA. Following information given by the claimant in a phone call to JCP the file was referred back to an Approved Disability Analyst - a GP asking him to consider awarding points for Execution of tasks.

The claimant suffers from debilitating depression and the consequent lack of motivation.

Here is the response from the GP.

Execution of Tasks - 'The training makes the point that the descriptor looks at the time to complete a task - not lack of motivation - so taking hours to work up would not score'.

Are we to assume that Depression is no longer a mental disablement?

If that approach to the law is correct (and on its face it appears likely) then for motivation one would have to look for points under the descriptor unable to initiate personal action without prompting in the claimant’s presence. Having said that, you could argue that your client "is unable to complete any everyday task" if he does not even start it. Bit of a stretch but worth a shot.

I have done 7 ESA appeals so far and I have not taken several cases (mental health cases) on that I probably would have under ICB. I have found that clients with moderate depression (I know you describe your client's depression as debilitating) find it difficult to hit 15 points more often than not and I have had to look for ‘risk to health of return to work’ arguments more than I did for ICB. I find that this group, so far, have been big losers under the new regime.

With all due respects I am not sure how the motivation to carry out an everyday task under 15 a,b,c or d could be separated from the physical actions of doing that task.

All tasks must start with the motivation to do them followed by the action itself so it might be argued that the time taken between the realisation that something should be done and actually completing the task could be added together. I was thinking of someone getting something to eat as an example, the person may feel hungry and be able to make a sandwich but takes along time to gather the motivation to get up and do it.

The descriptors are in the 'mental and cognitive' list and do not specifically mention learning difficulties, just 'mental disablement' so it seems unfair that someone with a learning difficulty who struggles with daily tasks might be awarded points where someone with severe depression couldn't.

I have since I made the post recalled that I have been to Tribunal with a similar case to the one I mentioned, another claimant with depression. The claimant lived alone so the Tribunal would not award points for the Initiating and sustaining personal action as there was no other person to provide the daily verbal prompting.

However, they did award 9 points under 19 b to add the 6 points that the Doctor had the medical had scored due to her lack of motivation.

This is recorded on her medical:-

'Often takes between one and a half times and twice the average length of time to complete a familiar everyday task due to depression!!'

Tue 23-Feb-10 12:47 PM by nevip

"The Tribunal would not award points for the initiating and sustaining personal action as there was no other person to provide the daily verbal prompting”.

I would regard that as falling into error as putting an unnecessary gloss on the regulations by making it a requirement that a claimant has to have a particular someone to prompt him in order to score points under the descriptor.

Descriptor 16D (for instance) states:

“Cannot, due to cognitive impairment or a severe
disorder of mood or behaviour, initiate or sustain
personal action without requiring frequent verbal prompting
given by another person in the claimant’s presence”.

Reading the regulation properly, it should be sufficient to score points if a person cannot initiate personal action (in this case frequently) precisely because he has no one to prompt him.

People with depression, even once they get started, tend to do everything slowly and get tired and give up half way through. Slow movements and thoughts are typical of the condition.

In the example descriptor posted by Nevip, note the use of the word 'requiring' and his conclusion that the descriptor should be met "precisely because he has no one to prompt him".

In DLA, where the word 'requires' is used, this is interpreted as 'reasonably required' but not necessaily received.

The context of the wording here is similar and I see know reason why DLA case-law should not assist to bolster Nevip's conclusion - and there is a veritable mountain of that.