Esa Appeal Refusal - What Is The Law?

[kaaliz]

I was recently refused my medical appeal for ESA when I was almost certain I would win.

On the specific report on me, the way the medical descriptor was phrased meant I qualified, without a doubt, but when I showed this to the panel at the appeal, they referred me to another page in the appeal submission where the descriptor was phrased differently and they said that was the one that counted.

I have since found it phrased a third way in another section of the submission.

My question is this: is it legal for three differing versions of this descriptor to be in the same legally binding document? I don't believe it is, but can anyone tell me the exact point of UK law that disallows this conflict?

Thanks.

[Peter Pedant]

I have only done two and I won both (clearly not myself).

I didnt notice when I was going over them,
that one thing was covered by three descriptors.
more detail ?

Oh, and I know of no case law on the subject.

[kaaliz]

Thanks for your answer, Peter Pedant.

It isn't one thing covered by three descriptors, it's one descriptor phrased in three different ways. The first way I would have won, the other way they win, but there's nothing to suggest that the version they used is any more valid than the one I used.

Sorry to be so vague, but it is an extremely complicated case and would take a long time to go into the specifics.

It just doesn't seem legal that three differing versions of the same criterion should appear in the one document and they should be able to pick and choose which one to enforce.

[woofgang]

could you at least quote the descriptors?

[kaaliz]

OK, it's embarrassing, but here it is...

Eg.1

(a) At least once a month experiences-
(i) loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, or
(ii) substantial leakage of the contents of a collecting device, sufficient to require cleaning and a change of clothes.

Eg.2

(a) At least once a month experiences-
(i) loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, or
(ii) substantial leakage of the contents of a collecting device,
sufficient to require cleaning and a change of clothes.

Eg.3 is the same as Eg.2 except is says once a WEEK not month.

So here is the dilemma, under my personal assessment it is laid out as Eg.1, which means I qualify, but when I pointed this out at the appeal they referred me to a different page where the descriptor was laid out like Eg.2 and I don't then qualify.

The crucial difference is whether or not that final clause is on a separate line or not. If it isn't, it only applies to (ii), if it is, it can apply to (i) or (ii). Eg.3 is largely irrelevant, but I include it only to show how inconsistent the appeal submission is.

So, what do you think, do I have a case?

[Peter Pedant]

as treated ca rectum none of this is news to me. thank god for the bidet is all I can say...

I hadnt realised incontinence came up so many times.

I think you have to ask the CAB as to the procedure after being turned down. They may say you wait a fixed period and then re apply. Alternatively they tell you how to appeal against the tribunal....

sorry to be so vague....

[woofgang]

you have typed it on here as "at least once a month" in both paragraphs?
also you have only posted two descriptors? Can we know what the third says?

I also am very familiar with the problems of dealing with continence issues, very unpleasant indeed!

[bednobs]

woofgang - th op says the third one is the same except it specifies once a week rather than once a month

[woofgang]

but eg 1 and 2 are the same, so I don't see what the problem is?

[browntrout]

Eg1 and Eg2 seem identical to a layman like me. But if in Eg2 the final clause is really on a separate line, i.e. stands alone then Eg2 requires both (i) and (ii) occurrences to necessitate cleaning/change of clothes. However shouldn't the previous bit end in a full stop and not a comma if that is right.

Eg1 (i) incidence doesn't have to require cleaning/change of clothes.

Having said that. What an absurd exercise of hair splitting and writing something in an over complicated way.

[THECORBYLOON]

The legislation is contained in Schedule 2 of the Employment and Support Allowance Regulations 2013. The wording in that Schedule is as follows '9(a) At least once a month experiences:

(i) loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder; or

(ii) substantial leakage of the contents of a collecting device,

sufficient to require cleaning and a change in clothing.

(b) The majority of the time is at risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change in clothing, if not able to reach a toilet quickly.

(c) Neither of the above applies.' The 'sufficient to etc.' applies only to 9(a)(i)

[THECORBYLOON]

Sorry that should be applies only to 9(a)(ii)

[browntrout]

Thanks for that thecorbyloon,

Well, if 9a(i) or a(ii) applies and that entitles you to the allowance I can't see what the problem is. If I was kaaliz I would seek professional advice.

[kaaliz]

Thanks everyone for your answers.

I agree with browntrout that this is an overly complicated way of putting it, but that's the SSA for you.

And I agree thecorbyloon that the final clause should only apply to 9(a)(ii) but since that last clause is on a separate line (on some versions of the descriptor), they say it applies to both.

I have applied for an appointment with my local CAB's specialist in appeal law, but they are very busy and understaffed and I need to make my case within a month. I think I have grounds to appeal this decision. I'll let you know how I get on.

Thanks again, everyone.

[THECORBYLOON]

What matters is the way the Descriptors are worded in the Regulations that applied on the date of the original decision. If they are different on a form or in other guidance, the Regulations take precedence.

[kaaliz]

That's what I thought, thecorbyloon. I would have brought it up at my original appeal, but I was so side-swiped by their decision, I went blank. This time I will argue to the bitter end. :-) Thanks.