Menieres and ESA

Thanks Dan. Yes I agree with you but my thinking is that the guidance coupled with the IB case law makes a fairly insurmountable case against.

I will certainly be asking the tribunal to look at whether lost or altered consciousness is appropriate (though I do not think there is a good chance on this ground) but still I don’t think I can prepare a particularly focused submission without something a bit more concrete or a positive decision in similar circs.

I’ve successfully argued at tribunal on more than one occasion for ICB that diabetic hypoglycaemic attacks are “altered consciousness”, the statutory term used for both ICB and ESA.  Si I agree with Dan.

Thanks. That is the encouragement I needed.

Thy will be done!

Any further help on this will be much appreciated.

You may want to look at several other activities also.  I dealt with an appeal for a client with Menieres Disease several years ago.  Her symptoms were so severe that she couldn’t stand up because as soon as she did she had vertigo and started to vomit.  When I did a home visit to help fill in a claim form she was crawling round on the floor.  Perhaps you should also consider walking, standing and bending descriptors as possibly applicable in your client’s case.

In my view, the fact that the wording for ESA is not identical with that for IB ought to mean that IB case-law is irrelevant. Dr Moira Henderson, who was the senior DWP medic in charge of the original WCA, was to my knowledge a diabetologist and I bet she had diabetic consciousness problems firmly within the scope of the descriptor.

altered consciousness is not a symptom of meniere’s, i also go with the bending, kneeling etc stuff given the massive loss of balance…and don’t forget the reduced hearing…

Cheers for the advice, I am just going to cover the whole lot and see what I get back, just got the date for the appeal hearing so I will let you know how it goes.

In the meantime if anyone knows any supportive case law I would be most grateful.

Ive had no experience of Menieres and IB/ESA appeals but had a successful rehearing of DLA and then the same client with a revision on a new DLA claim.  It helped because my Mum suffers with menieres , so i know first hand how it can effect you and how it can vary in severity. I would have thought if the activities/descriptors dont fit that exceptional conditions would due to the inbalance that is suffered all the time and the risk of ‘drop attacks’ , also that people around you can misinterpret the outwards signs, you can walk like you are drunk and speech can slur, so people will avoid rather than assist you.
My mum has problems on transport (movement), with flashing lights, fast moving images, patterns on clothes-espcially black and white checks etc, problems bending, her walking can be staggery, problems focussing to see at times, hearing problems, tinnitis, inability to walk with acute attacks, risk of drops attacks ( should be treated as a loss of consciousness), memory problems, slurred speech, concentration problems. Sitting down is not always a remedy, if a severe attack comes on she needs to lie down with her eyes closed-she can do nothing until a severe attack passes.

Hope this helps.

This is what I have written regarding lost or altered consciousness:
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A point of contention is whether an attack of Menieres falls under the umbrella of the descriptor relating to lost and altered consciousness. Though under the PCA for IB it has been established that it does not,  this much is not clear for the WCA. It is our submission that as the wording differs between the statutes for these two benefits it is possible for an attack of Menieres to be considered an episode of lost or altered consciousness. In the ESA handbook it is stated that symptoms of Menieres should not be considered as grounds for an award of points under this descriptor but this is not made clear by the case law we are privy to or the statutory definition of the descriptor.

If the tribunal agrees with the ESA handbook’s construction of how the descriptor should be interpreted we respectfully ask that it is considered that in the same section the following is pointed out: “Giddiness, dizziness, and vertigo are… not taken into account when assessing the functional area of remaining conscious.  If they affect functional ability in other categories, they should be taken into account when considering the relevant activity categories”
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Please let me know what you think of this and what improvements you would make. I will keep you updated as to how it goes.