Found fit for LCWRA but on renal dialysis???

Hi everyone I am losing the will to live with this case.  Helped a lady apply for CESA. She was turned down stating she did not meet the contribution conditions, therefore this has been appealed and 4 months on nothing. However in the mean time did receive an ESA50 which I helped fill in. The lady is very sick and has chronic renal failure and is undergoing treatment 3 times a week in dialysis. She also has heart failure and arthritis and has been told she is unsuitable for a transplant.

Received a letter today stating that she has been found LCW without a medical assessment so happy as larry but it goes on to say she has been placed in the work- related group as she does not have limited capability for work related activity. WHAT?

I have read over and over again and I am so sure that under reg35 it states:
Certain claimants to be treated as having limited capability for work-related activity

35.—(1) A claimant is to be treated as having limited capability for work-related activity if—

(a) the claimant is terminally ill;

(b) the claimant is—
(i) receiving treatment by way of intravenous, intraperitoneal or intrathecal chemotherapy; or
(ii)recovering from that treatment and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or
(c)in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity.

Can someone please assure me that she should have gone straight into the support group due to meeting the reg 35 as she is receiving haemodialysis treatment intravenously?

I never really saw this coming and I am baffled of how this can happen??? I shouldn’t really be surprised. Any comments and suggestions welcomed.
thanks
Aisha

Hi Aisha,

I’m afraid there is nothing about dialysis in Reg 35. The client can appeal the decision, and either argue that she meets one of the descriptors in Schedule 3 to the ESA Regulations - ie she has LCWRA in accordance with Reg 34 - or in the alternative that she should be treated as having LCWRA under Reg 35 (2):

‘(2) A claimant who does not have limited capability for work-related activity as
determined in accordance with regulation 34(1) is to be treated as having limited
capability for work-related activity if–
(a) the claimant suffers from some specific disease or bodily or mental
disablement; and
(b) by reasons of such disease or disablement, there would be a substantial risk
to the mental or physical health of any person if the claimant were found not
to have limited capability for work-related activity.’

As long as she is still on dialysis she will be treated as having LCW under Reg 26(1)(a), so an appeal should carry no risk to her WRA Group status.

Jon

Hi

I read the following:

“(i) receiving treatment by way of intravenous, intraperitoneal or intrathecal chemotherapy” 

as meaning that the claimant is receiving chemotherapy intravenously, intraperitoneally or intrathecally.”  Therefore the claimant is treated as having limited capability for work under this condition if she is undergoing or undergone chemotherapy.

Perhaps someone else can confirm either way.

Sorry I can’t reassure you.

Jon Shaw - 12 September 2012 04:33 PM

Hi Aisha,

I’m afraid there is nothing about dialysis in Reg 35. The client can appeal the decision, and either argue that she meets one of the descriptors in Schedule 3 to the ESA Regulations - ie she has LCWRA in accordance with Reg 34 - or in the alternative that she should be treated as having LCWRA under Reg 35 (2):

‘(2) A claimant who does not have limited capability for work-related activity as
determined in accordance with regulation 34(1) is to be treated as having limited
capability for work-related activity if–
(a) the claimant suffers from some specific disease or bodily or mental
disablement; and
(b) by reasons of such disease or disablement, there would be a substantial risk
to the mental or physical health of any person if the claimant were found not
to have limited capability for work-related activity.’

As long as she is still on dialysis she will be treated as having LCW under Reg 26(1)(a), so an appeal should carry no risk to her WRA Group status.

Jon

Sorry posts crossed.  I agree with the above advice from Jon

Hi Aisha:
See Reg 26 of ESA Regs which refer to dialysis.

Reg 4 ESA Regs provides that the assessment phase does not end where someone is treated as having LCW under Reg 26 until an LCW determination is made.  The fact she is now receiving the WRAC suggests that the WCA has been completed.  It’s possible that she failed the LCW assessment and is still being treated as having LCW under Reg 26, in which case the WRAC would still be payable given that a determination of LCW has still been made.  However, chances are she has passed the LCW assessment either because she scores at least 15 pts or satisfies Reg 29(2)(b), ie substantial risk to her mental and/or physical health were she found not to have LCW.

The fact she doesn’t have LCWRA means a DM has decided she doesn’t satisfy any Schedule 3 descriptor nor Reg 35. 

In assessing whether she meets any of the Sch 3 descriptors (she only has to satisfy one of them to get into the support group), the DM should have reagard to para (2) of Reg 34 ESA Regs which provides:

“(2) A descriptor applies to a claimant if that descriptor applies to the claimant for
the majority of the time or, as the case may be, on the majority of the occasions on
which the claimant undertakes or attempts to undertake the activity described by that
descriptor.”

NHS Choices website sets out the pros and cons of heamodialysis here:
http://www.nhs.uk/Conditions/Dialysis/Pages/Advantages-and-disadvantages.aspx

It includes this:

“The main advantage of haemodialysis is that you have four dialysis-free days a week.

Haemodialysis usually involves using the dialysis machine three times a week, with each dialysis session usually lasting for about four hours. Therefore, you will have to plan your life around your dialysis sessions….

…disadvantage of haemodialysis is that your diet and the amount of fluid that you drink needs to be restricted….they are usually advised not to drink more than a couple of cups of fluid a day.”

The same site lists side effects of haemodialysis here: http://www.nhs.uk/Conditions/Dialysis/Pages/Side-effects.aspx
Notably, it includes:

“Fatigue, where you feel tired and exhausted all the time, is a common side effect in people who have used both haemodialysis and peritoneal dialysis on a long-term basis.”

I’d be interested to know how she can, for the majority of the time, repeatedly mobilise 50 metres within a reasonable timescale without significant discomfort (descriptor 1, Sch 3, ESA Rgs) when she is likely to be fatigued and unable to drink more than a couple of cups of fluid a day.

Thanks Tom and everybody who replied. Update she has been awarded CESA after a complaint and they found she did have paid contributions so hallelujah!!!
So the next battle is to try and get this lady into the support group as her CESA will be limited. I totally agree with you Tom and this lady has other health problems such as severe arthritis, diabetes, heart failure and chronic bronchitis, which means she has recurring chest infections and breathing difficulties and has to use a nebuliser and steroids and is in constant pain. Her doctors are astounded that she is still alive as every major organs are slowly giving up…..... oh well let the battle lines be drawn!!!!

“Her doctors are astounded that she is still alive as every major organs are slowly giving up…..... oh well let the battle lines be drawn!!!!”

And if she’s not careful the DWP will deliver the coup de grace.  Scandalous!

Hi Everyone i would like to share an positive update on this case. Daughter called me to say that Jobcentre Plus have been in contact and apologised that they did not understand from the bulk of medical evidence sent in with the ESA50 that a decision was made to place this lady in the work activity group. This is incorrect and have now placed her mother in the support group and profusely apologised for the errors made in her mum’s case and not to appeal the decision as this has now been rectified!!!!!
I wish all my cases would change by a mere phone call would save me a lot of time!!!!! :)