*****
That afternoon Sue put the wheels in motion. She phoned the jobcentre plus, listened to the same music she had for numerous years until she was put through to an adviser, and then she informed them of her intention to appeal and asked if she could have her benefits paid to her in the meantime.
Then she put pen to paper and wrote down her grounds for appeal:
Dear Sir/Madam
I would like to appeal against the decision to refuse my application for ESA.
I would like to continue to receive my benefits while waiting for my appeal.
I would like to receive a copy of the assessor’s decision in full.
Grounds for appeal:
I cannot walk anywhere, for any distance without extreme discomfort.
The distance I can walk is decreasing as my condition worsens.
I find it extremely uncomfortable to stand or sit for any length of time, and on an evening I am forced to lie down.
My assessment lasted less than 15 minutes so I find it difficult to understand how I sat for 18 minutes.
The Q&A session lasted 8 minutes tops and hardly covered any areas of my physical difficulties.
I find it bizarre that making a cup of tea and a sandwich equates to an ability to work.
It is extremely difficult to adjust to a life where you can do very little and the vast majority of the time is spent in the house. Therefore I find it unjust and insulting to have hobbies, such as writing, reading and crochet, held against me. Without them you’d most certainly be dealing with a claim for depression also.
Yours faithfully
Miss Sue Bailey
Outrage and indignation fuelled Sue’s pen, the letter may not have been particularly eloquent, but she hoped the short, sharp, statement of fact would go some way to conveying her anger. Justifiable anger, she reminded herself, and as such completely sanctioned by her Buddhist beliefs.
Several weeks later the brown envelope plopped onto the doormat, the results for the first round of her appeal. The decision would have been looked at again and either upheld or reversed, if it was not the response she hoped for, she’d have to go to a formal appeal. However, Sue held out no hope of the decision having been reversed, amongst her friends, and acquaintances stuck in the system she had never known that to happen. So, she didn’t rush to open the envelope, but made herself a cup of tea before sitting down to read her sentence.
The decision maker decided that Miss Bailey scored 0 points for the physical descriptors. This is disputed by Miss Bailey.
The decision maker also decided that Miss Bailey scored 0 points for the mental descriptors. This is not disputed by Miss Bailey.
Miss Bailey has appealed against the disallowance decision and argues that she does have a continuing limited capacity for work.
I respectfully submit that none of the physical or mental health descriptors are appropriate in Miss Bailey’s case.
Miss Bailey states she cannot walk far without extreme discomfort. She stated in her typical day she can walk for about 10 minutes to the village. This would equate to more than 200 metres. There were no abnormal findings from the lower limb or upper limb extension. She should therefore be able to mobilise propelling a manual wheelchair, if one was available. She has stated she cannot sit or stand for any length of time as she finds it extremely uncomfortable. She travelled by sitting in a car to the examination centre from Taunton. She was reported to have sat for 18 minutes at the assessment and rose twice without any assistance. She has disputed this saying the assessment only lasted for 15 minutes. The start and end times indicate the assessment lasted for 19 minutes. She has questioned why her hobbies of writing novellas on her laptop and learning to crochet should be considered in her ability to work. As these hobbies include sitting for a required length of time this indicates the ability to remain at a work place. For the sitting and standing descriptors the person does not have to sit for the whole 30 or 60 minutes, they can alternate between the two activities. For example, a person may be able to sit for 30 minutes, then stand for 10 or 25 minutes, then sit again for another 30 minutes. In this case they would not attract a scoring descriptor as they are able to remain at the workplace for more than 60 minutes. Miss Bailey has asked why making a cup of tea equates to an ability to work. This is mentioned to indicate that she is able to manage and complete daily routines.
I should stress that failure to reach the qualifying threshold for benefit entitlement, as determined by the Decision Maker should not be interpreted as a question of doubt about Miss Bailey’s medical condition. On the contrary, what her doctor or hospital specialist has diagnosed is not in question. It indicates that, notwithstanding her medical condition, the evidence shows no significant functional impairment in the performance of specified activities and tasks, for the majority of the time, and that she should therefore be capable of doing some suitable work.
Health Care Professionals are required to form their own opinion of a person’s functional ability by evaluating all the evidence in the light of their knowledge of the disabling condition, its likely effects and benefit law. The Decision Maker considered the clinical history and noted Miss Bailey’s ability to carry out normal, everyday functions. The Decision Maker also noted the Healthcare Professional’s findings and observations on each of the physical activities in dispute and decided that he agreed with the Health Care Professional. The Health Care Professional had reached an opinion following a clinical examination of Miss Bailey, by talking to her and observing her throughout the assessment. Clinical findings do not support Miss Bailey’s contentions regarding the severity of her disabilities and, therefore, her capability for work.
I feel it is pertinent to explain that the medical assessment is entirely different from the usual type of clinical examinations that a GP or hospital doctor carries out. Clinical examinations are focused on making a diagnosis and deciding on the best form of treatment and management. The interview and examination that the TOST Healthcare HCP carries out are directed towards determining functional ability and the scope of the assessment is intended to be relevant for that purpose.
The HCP does not necessarily have to see a person perform a function in order to reach an opinion of the capability to perform that function. For example, an opinion on walking ability can be formed by assessing such factors as joint movements, muscles power and back function etc
I respectfully submit that based upon the information/evidence available to them the Decision Makers have fully considered the extent of Miss Bailey’s general/most of the time function ability in so far as the descriptors of the physical and mental descriptors apply. Because Miss Bailey does not satisfy the requirements of the WCA, the decision that Miss Bailey was no longer entitled to ESA is supportable.
I respectfully request that the tribunal confirms the decision that Miss Bailey is not entitled to ESA, as she does not have limited capacity for work insofar as the legislation applies.
Should the tribunal decide that Miss Bailey does have limited capacity for work; I respectfully request that they decide whether or not Miss Bailey has limited capacity for work-related activity. If they determine that there is insufficient evidence, the tribunal is requested to refer the case to the Decision Maker for determination.
“Shit,” Sue shouted, she felt sick and angry, so very angry. “Shit…I can walk for ten minute, yippee, lucky old me…bastards, I’ve never left the house for nearly two weeks, but hey that doesn’t matter because on a good day I can walk 10 minutes…fuck…I should use a wheelchair, yeah, why not, let’s give in and see myself become more disabled…doesn’t matter that I can’t sit in one without pain and I sure as hell can’t mobilise myself in one…for 200 metres, yeah probably, bastards…how many employers are only going to require me to move 200 fucking metres in a day…I can sit and stand, move around a little…what the fuck does anyone else do, doesn’t mention the fact that I frequently need to lie down in the afternoon and all fucking evening, because
, yeah, I’m sure an employer will be happy for me to sit, stand, walk, lie down, no fucking problem…and I sat in a car to get there, well, obviously, what was I supposed to do, fly? The assessment wasn’t bloody optional…and it did only last at the most fifteen minutes, ask my parents, but no, they’re probably fucking liars too…obviously I’ve lied, that’s a given, as has my GP in declaring me unfit for work, the person I see all the time, and not some arsehole who talks to me for ten minutes, nooooo they can obviously tell straight away what’s wrong…fuck, fuck, fuck.”
Sue sat down and cried, hated herself for doing it, but did it anyway. Her energy was spent, she had nothing left. How did you get through to these people? No matter what you said it was twisted and spat out as conclusive evidence you were fit to work, you were a lying scrounger, and not someone who just needed something, just something to get by, to pay the bills, to not have to be financially dependent upon her parents. Just until, until what? Until she was, ‘cured,’ well that seemed highly unlikely to happen, this was her life now.
No, turn it around, make it a positive. But what positive could there be, she’d scored no points, she wouldn’t win her appeal, but she would fight it because there were so many other people who didn’t have the means, the language or the ability to do so. She had to fight, otherwise she was letting everyone down. Yep, she’d fight, sod ‘em. Christ her mother was right, her language was getting worse.
Chapter forty-two
February 2013
Five months later and Sue found herself following a maze of corridors. She’d chosen to gamble, knew if she failed and lost her appeal, she’d have to go onto job seekers allowance for at least a month before she could reapply for ESA, but she’d decided to go for it, she couldn’t have said why, but it came from a solid outrage inside that she was not prepared to ignore. And so she’d shuffled across a courtyard, re-entered a building, shuffled through more corridors until she’d finally emerged into a waiting area; sneaky, it must have been at least 200m from where her dad had dropped her off. It was a bigger waiting area, but still a square room with chairs around the outside and a desk in the corner, where Sue announced herself. The appeal business was obviously doing well for TOST, they now had multiple cases being held at the same time, at least their business was booming, expanding rapidly judging by their new offices, even if it was at the misery of others.
Sue sat, concentrated on calming her breathing, she could feel her underarms becoming claggy. She could do this, she would do this, she had nothing to lose. Finally the clerk called her name and showed her in to another room, barren but for two people behind a long table, and a desk in the corner for the clerk. Sue sat down, alone, to face the Judge and Healthcare Professional; due to cut backs in funding to welfare rights she was no longer entitled to representation. She’d thought back to the man curled into the wall at her previous hearing, at a friend who’d had the appeal go her way without the need to speak, as her representative had picked up on a point of law, and again she thought it shameful; the government had brought in the necessary legislation quietly and it had slipped through without any adverse publicity because why would the public not be in favour of something else that would seek out those lazy benefits cheats. If only they would realise that those people only existed within the government’s propaganda.
“Miss Bailey, good afternoon. I’m Judge Philips and this is Dr Heath. Have I sat on one of your cases before Miss Bailey? Your name sounds familiar.”
“I don’t know, I don’t think so,” Sue said, her mind focused upon what was to come.
“Well, as I said I’m Judge Philips and-”
“Before we begin, I’d like to make a short statement, presumably that’s allowed,” Sue couldn’t believe she’d said it, the paper in her hand shook violently as she held it up.
“Oh, I see, well, I don’t know.” Judge Philips looked to Dr Heath, who merely shrugged. Sue felt the first tingle of satisfaction, she would lead this meeting, she would be in control.
“I’m not prepared to carry on with the appeal without first having my say, I think that only just,” Sue felt the anxiety fade away as she spoke, anger was taking over; yes, that was the emotion she needed to harness.
“Firstly I’d like to state my points of appeal:
Cannot repeatedly mobilise 200 metres within a reasonable timescale because of significant discomfort or exhaustion.
Cannot sit for more than 30 minutes, before needing to move away in order to avoid significant discomfort or exhaustion.
Now I would like to fill in the blanks that are not covered by the TOST assessment when looking at my typical day.
I can get out of bed and get dressed myself, although this can take quite a while as my body doesn’t allow for rushing. My back and legs are always very painful first thing on a morning and I have to be very careful in the way I move. Whilst dressing three weeks ago, my sciatica was particularly bad, and I ended up stuck on the sofa for almost week as I pulled my back.
Yes I can make hot drinks and a sandwich for myself, my main meal on an evening, the vast majority of the time, is a tin of soup, or beans, something to heat up and eat. Because by the time evening comes I am too tired and in too much pain to stand and cook. Rarely, if I’m having a good day, I will make a stew or soup and eat that every night for however many days it lasts, just so that I don’t have to stand and make something new anymore.
I do read, crochet and write. When you leave a job you love, that absorbs all of your time, you have to find something to fill your days. Otherwise they are incredibly long, I know at times I’ve been close to falling into depression, but had enough self-awareness to stop the slide. I find it shameful that these things are held against you in an ESA appeal, and quoted as reasons for you to be fit for work. If I crochet or write it is only for very small chunks at a time, less than 20 minutes usually. I have a hot water bottle on my back, which is now mottled and discoloured because of that, and occasionally blistered because of the heat I’ve needed to try and sooth the pain. If not that then I have a tens machine on. Just getting through the day, every day is painful, uncomfortable, a challenge, I am never without pain when moving, standing or sitting and frankly I find the language used in the report insulting as it states – she spends her day writing short stories, using a laptop, reading and crocheting. Doesn’t my existence sound idyllic?”
Sue paused and looked both Judge and Doctor in the eye, now she’d begun her anger seemed to shimmer through her speech, her gaze hardened as she carried on.
“Apparently quoting these hobbies is to show I can remain at a workstation for more than 60 minutes. Perhaps someone should have asked how long I sit, how I sit and what I use to feel comfortable when I sit because their assumption is simply not true.
By 7 o’clock I have to lie down until I go to bed, because I can’t stand the pain and pressure in my lower back.
I try to do usually 2 short walks around the village, I am always in pain. Some days I do just 1 and sometimes I never leave the house for days on end. I cannot repeatedly mobilise myself without severe pain. I try to keep moving, or I would be in a lot worse state, it’s part of my physiotherapy and again I find it shameful that my attempts to managing my pain are held against me.
I find the remark that as there’s nothing wrong with my upper body, therefore I could use a wheelchair insulting. My physio was disgusted by the comment, and again how do you argue against such a statement. I have used a wheelchair in the past, it was uncomfortable, and left my lower back in agony.
I have not sought written help from my GP again, because I think she probably has enough to do, she wrote two very supportive letters for me last time which made no difference. I’m sure she is inundated with requests and I didn’t see the point as I was told that, GP examinations are completely different to the TOST ones, which override any other opinion. Plus the HCP doesn’t need to see a person perform a function to know if someone is capable of doing it or not.
I have no
faith in the system whatsoever. I have gone from 0 to 6 to 15 to 12 to 0 points, all with the same condition that has steadily deteriorated over the years, although I appreciate the goal posts have been significantly moved lately.”
Sue resisted the urge to add, by the present government, as after all it had been established under the People’s Party; the Republicans were merely exploiting it for their own agenda.
“At my last appeal it was stated on the forms that I drove a manual car, despite the minutes documenting me saying I couldn’t drive anymore and hadn’t had a car for 2 years.
When I said I went to the shops on a good day, about every 5-6 weeks. I was described as a frequent shopper from then onwards.
My description of my pain was dismissed, apparently the tribunal could tell by looking at me how severe they judged it to be and on one occasion my symptoms were dismissed as unlikely. As I have waited 4 years for anyone to start and diagnose my problems I find it unbelievable that anyone could make a judgement on my ability to function, dismissing my account when specialists over the years have been unable to help.
Then of course you have the patronising comment saying, you’ll probably be back at work in 3 month. Have you any idea how upsetting that it to someone who has had to struggle for so long to accept their pain and the unlikelihood of their return to work?”
Judge Philips at least had the decency to look down at this point, the Doctor maintained eye contact.
“At this medical the first question was, is everything just the same then? I was hardly asked about anything and was all done in less than 15 minutes, I don’t care what the form claims, ask my parents, they’d just got a coffee and I was phoning to be asked to be picked up.
My week is, a craft class on a Wednesday, my parents pick me up and take me for coffee on a Friday, and to their house on Sunday. That is the norm, and that’s about as much as I can handle, the rest of the time I manage my pain in the house.
An Ordinary Working Man Page 27
