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ESA Appeal propel a wheelchair
New case wanted to share this gem
Decsiion maker accepts customer walking ability is less than 20 metres but he could propel a wheelchair so no LCW.
Statement in the decsion makers reasons as follows
“The decision maker has considered that a wheelchair could be obtained through the NHS wheelchair service if required, the use of a wheelchair would enable XXXXXXXXXXXXXX to mobilise more than 200 metres so he could engage in the labour market by being able to mobilise in a fully accessible area, and if he has an inability to store a wheelchair at home, it would be a reasonable adjustment for the wheelchair to be stored at the employers premises if necessary”
I despair I really do
Be fair now.
That’s wrong on so many levels it is at least fun to list them and the tribunal judge is clearly desperate to be flagellated by an Upper Tribunal Judge.
So, let’s list them then… 😊
- Any evidence of whether client eligible for an NHS wheelchair?
- Any evidence on the length of time on the waiting list?
- What is a “fully accessible area”? I’ve yet to see one if that helps.
- Does one merely have to access one “fully accessible area” to be able to work? Would it be okay to be able to wheel along a carpeted floor if there was no lift and no accessible toilet (you’ll gather I AM enjoying this!)?
- Oh yeah, does the appellant drive? If not, will their imaginary wheelchair go on a bus, train or tram at peak hours thus enabling them to, er, get to work? Oh, and from work obviously!
- Does anyone know of an employer happy to provide a space to store your wheelchair overnight? Will that include weekends when the employer is possibly shut or am I just being awkward?
- A ‘reasonable adjustment’ enables employment or retention of same. Storage of wheelchairs doesn’t enable either of those things unless the wheelchair would have to go back in the absence of any storage area.
Anyone care to add to my initial list?
yes
storing wheelchair at work would leave him unable to get to/from work….
My thoughts exactly
I will be looking forward to this hearing (if it gets that far) as we know it probably will.
This is not the only gem in this particular case, my day yesterday consisted of statements from me like “OMG are you for real” and many more not suitable for print.
Makes you realise we actually can make a difference :)
store your wheelchair overnight?
On the bed-post obviously!!
yes
storing wheelchair at work would leave him unable to get to/from work….
Not at all.
Greater Manchester gridlock will spread to Halton soon enough. Matter of time before our employers have to provide bedroom facilities to go with kitchens and so on.
Unfortunately, what the Decision Maker has picked up on in the case of Gail’s client is the findings of a three judge panel in CE/509/2013
http://www.osscsc.gov.uk/Aspx/view.aspx?id=4245
The following is from the rightsnet summary of the judgement -
The three judges give specific guidance to the application of Activity 1 to claimants who do not normally use manual wheelchairs –
1. Because the work capability assessment is not to be divorced from the real world of work and the claimant does not actually have an employer, the test must be applied on the basis that the notional employer from whom the claimant might obtain employment has a modern workplace and is prepared to make reasonable adjustments in order to enable the claimant to be employed.
2. All medical considerations will need to be taken into account.
3. The home environment is potentially relevant but an inability to use a manual wheelchair at home or to store it there due to the physical layout of the home is unlikely to be as important as was suggested in DM and NT.
4. The availability of manual wheelchairs is a question of fact, to be proved by evidence although the First-tier Tribunal is entitled to use its own knowledge. However, the Access to Work scheme operated by Jobcentres may well make it unnecessary to consider in each case whether a claimant would be able to obtain a manual wheelchair.
5. It is necessary for the Secretary of State to anticipate or at least answer objections that claimants who do not use manual wheelchairs or other aids might make to being expected to consider using one
In a later decision, CE/551/2014 -
http://www.osscsc.gov.uk/Aspx/view.aspx?id=4245 -
the Secretary of State’ admits that the Access to Work Scheme would not normally be used to fund the purchase of a manual wheelchair, but could fund the extra cost of a specialist wheelchair if appropriate.
Doesn’t really matter. Reading post #1 suggests the tribunal made no independent findings of fact. Error of law right there. That they did so by misapplying existing case law is relevant but to some extent it doesn’t even matter which caselaw.
By the by, 3 in that decision is errant nonsense and causes huge problems for 1.
The use of “modern workplace” will inevitably be the subject of challenge at some point. I look forward to that!
Doesn’t really matter. Reading post #1 suggests the tribunal made no independent findings of fact. Error of law right there. That they did so by misapplying existing case law is relevant but to some extent it doesn’t even matter which caselaw.
By the by, 3 in that decision is errant nonsense and causes huge problems for 1.
The use of “modern workplace” will inevitably be the subject of challenge at some point. I look forward to that!
My understanding of Gail’s post (and #3) is that this hasn’t actually reached tribunal yet… just the DWP DM’s decision and reasons for it…
Doesn’t really matter. Reading post #1 suggests the tribunal made no independent findings of fact. Error of law right there. That they did so by misapplying existing case law is relevant but to some extent it doesn’t even matter which caselaw.
By the by, 3 in that decision is errant nonsense and causes huge problems for 1.
The use of “modern workplace” will inevitably be the subject of challenge at some point. I look forward to that!
My understanding of Gail’s post (and #3) is that this hasn’t actually reached tribunal yet… just the DWP DM’s decision and reasons for it…
Yup. Apologies. Bad eyes day.
I like the arguments about the practicalities of a wheelchair in the average workplace but is there any evidence that the person could actually propel one unaided ?
I like the arguments about the practicalities of a wheelchair in the average workplace but is there any evidence that the person could actually propel one unaided ?
You could have gone with “is there any evidence” and just stopped there really :)
Thanks everyone I will keep you infomed of my progress on this one
Hi Gail
ive just got an ESA LCW decision which included the same phrase you have quoted, word for word regarding wheelchair, so I was wondering what progress you’ve had with your case?
cheers
Natalie
I’ve had exactly the same today in failed WCA decision
Oddly enough I was intending to post to ask if anyone was encountering the Phantom Wheelchair again as we’ve come across it in the past week or so again too. I thought that one had been firmly laid to rest but its clearly being trotted out of retirement.