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Chronic Fatigue
Have a clients ESA appeal coming up soon, struggling to find points, has anyone made an arguement for a client with chronic fatigue syndrome. The client is adamant he has no mental health problems and the primary reasons are that he has no energy to complete tasks, can only think of Reg 29.
regards
The rules state that if an activity cannot be carried out with reasonable regularity, then it should deemed that the person cannot do the activity. Therefore it could be worth looking for any evidence of how often the claimant can do a task. If the clients condition hasnt changed a great deal since the decision was made, it could be worth them keeping a diary, logging what happens when they repeatedly attempt a task. For example - it would be reasonable to turn a star headed tap a number of times a day to make a drink, or to sit down at home over a number of periods.
As with anything that is fluctuating, the odds can often seem stacked. Therefore a good consultants letter would really add weight to the claim if possible, although a friend or family memeber has been useful to describe the tiredness of such a claimant when i have had these cases.
Did the client indicate any issues with the physical descriptors on the ESA50?
Also the former mental health descriptors also refer to cognitive function which can refer to CFS (concentration etc?)
Otherwise you are on REG 29. Also worth looking at using parts of this report which relays how the medical profession should be treating people with ME/CFS.
Also worth looking at CE 1220 2010 -
19. I do not accept the submission for the Secretary of State, in the written submission of 12 January 2011 and repeated by Mr Cooper at the oral hearing, that there can only be qualification for a descriptor under Part 2 if the relevant problems stem from a mental health problem, whether existing completely independently or resulting itself from a physical disablement. I fear that that submission did not get much further than the assertion that that had to be so because the descriptors under Part 2 referred to limitations on activities that stemmed from mental health problems. The problem with that submission is that some of the descriptors in Part 2 refer to things that could also stem from physical problems. It was also thought necessary in some instances to make a specific reference to mental illness or disablement, sometimes of a specific kind (see, for example, paragraphs 15, 16 and 19), which points against the existence of the general condition put forward for the Secretary of State.
20. It seems to me first that the contrast between the headings to Parts 1 and 2 of Schedule 2 is very significant. The heading “Physical disablement” points to the underlying cause of the effect on physical function tested in the descriptors in Part 1. The heading “Mental, cognitive and mental function assessment” points to the nature of the function that is affected, regardless of the underlying cause, suggesting that if one of those functions is affected in a way that meets the terms of a descriptor there is no need to embark on the horrendously difficult task of separating out mental and physical origins. Second, the terms of regulation 19 of the ESA are very significant. Regulation 19(5) merely provides that there is qualification for points under the whole of Schedule 2 only if the incapability to perform the activity in question arises from some specific bodily disease or disablement, some specific mental illness or disablement or from the treatment of such conditions by a medical practitioner. There was the plain opportunity to connect Part 1 to physical disease or disablement and Part 2 to mental illness of disablement, which was not taken. In my judgment, the Secretary of State’s submissions involve the adding of words to the ESA Regulations that are not there. That could be justified only in cases of manifest absurdity or mistake or where there was a clear intention in the context of the Regulations as a whole that there should be an interpretation to that effect. The circumstances fall a long way short of that. Accordingly, in my judgment, if the tribunal was considering paragraph 14 of Schedule 2, it failed to give an adequate reason for not looking further at its conditions.