I have a claimant who was diagnosed with breast cancer in July 2009. She had surgery in August but had to return in October for more. She went for an ESA medical on 8th October, told the nurse who assessed her she was booked in for further more radical surgery on the 12th October but was found not to have LCW. She then went on to have a full mastectomy in December, followed by reconstructive surgery, which is still ongoing because she lost muscles and her nipples etc. She is now taking oral chemo (wasnt at the time) but has not had IV chemo or radiotherapy at any point.
She scored 0 points and indicated that she scored 0 points, both physical and mental and she was notified that she didnt have LCW in November. The DM did ask Atos to consider reg 29 but they said she didn't qualify.
I obviously think she should have - she would have been dead by now if she couldn't have had her surgery and was forced to sit in Jobcentre Plus listening to their advice about how a woman with spreading cancer should get back on her bike... grrrr....
Her appeal still hasnt been heard and has just been passed on to me by a colleague.bbHaving just read through the papers I'm furious and feel like I need some calm and reasoned advice about how to approach this.
She wrote her own letter of appeal, saying she couldn't lift shopping, heavy pots or hoover up etc.
I'm sort of assuming the tribunal will just find that reg 29 applies before we even get in the door, but I'm also worried that I'll be wrong about that.
Please help! :-/

You should also consider Reg 25: at the date of the decision she was recovering from treatment as a hospital in-patient.

I have had 2 tribunal judges agree that Reg 25 applies to people who were in-patients but at the time of the decision were out of hospital and recovering. On the other hand I have had one judge who felt this reg only applied to people who were still in-patients.

That the tribunal has decided that reg 29 applies before you walk in the door should not be assumed. However, a detailed letter from a consultant would help. I had a case several years ago for a young woman with breast cancer but she was also suffering from depression compounded by the recent death of her father. We had a brilliant letter from a consultant covering both issues.

In that case the tribunal had decided before we went in that reg 27 (the corresponding reg for ICB) applied. Job done, in and out. However, that was an extreme case and I would always be prepared for argument on the point. I, personally, usually do not do written submissions for most cases (and rarely, if ever, for ICB/ESA) but do verbal submissions on the day. You will obviously do what works for you.

I rather like Victor’s approach and this is what I said on here in a previous post which Victor posted on also.

“The phrase “is recovering from treatment as an in-patient in a hospital” should not be read as recovering from treatment WHILE an in-patient in a hospital but should be read as recovering from treatment AFTER HAVING HAD TREATMENT as an in-patient in a hospital. This makes far more sense. Otherwise the discretion given to the Secretary of State by paragraph 2 would be otiose as the claimant would already count as an in patient under paragraph 1”.

Thanks to both of you. I will look into this. I have already got a general supporting letter from the GP but there is also a consultant I can approach and I can ask him to comment on this. She did get an infection after the first op, which she had at the examination and had a few complications after 2nd and 3rd surgery which impeded her healing anyway so I can ask him to comment on that too, which will provide what we require without sounding too contrived.
I'm plannning to send a covering letter when I send in the further evidence but no, I'm not a fan of written submissions either unless there's some exceptional reason.