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Appealing to upper tribunal
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# 1
tn48884
Old 29-04-2013, 2:40 PM
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Default Appealing to upper tribunal

My dad was turned down for ESA after an appeal hearing. He has been getting help from Welfare Rights regarding this and they feel there has been 3 errors in law in regards to his hearing so we are taking things to the upper tribunal. Has anyone ever done this? What should we expect to happen now?

Thanks in advance for all your help
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# 2
Mersey
Old 29-04-2013, 5:32 PM
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Yes, I did this on behalf of a friend, 2 years ago.

You will need to request the written Statement of Reasons from the First Tier Tribunal.

You can then seek permisson to Appeal to the Upper Tribunal.

If the First Tier Tribunal refuses, you can seek permission direct to the Upper Tribunal.

The FT refused permission, but then the UT gave permission and we succeeded at the Upper Tribunal, so don't give up.

I'll add some relevant case law for you, next week.
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# 3
tn48884
Old 30-04-2013, 8:23 AM
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Thanks for your reply! We have put in our appeal to the upper tribunal, when i see we have, welfare rights have. They have been through the reason of decline and feel there have been 3 errors in law. I was just wondering how long it can take for them to make a decision or if he will need to go for another medical? Has anyone here appealed to the upper tribunal, what was your expeirence?

xx
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# 4
rogerblack
Old 30-04-2013, 9:02 AM
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Quote:
Originally Posted by tn48884 View Post
Thanks for your reply! We have put in our appeal to the upper tribunal, when i see we have, welfare rights have. They have been through the reason of decline and feel there have been 3 errors in law. I was just wondering how long it can take for them to make a decision or if he will need to go for another medical? Has anyone here appealed to the upper tribunal, what was your expeirence?
It is likely to take months.
They are likely to have applied for permission to appeal to the upper tribunal to the first tier tribunal.
The FTT can do various things - from setting aside the decision and having a re-hearing, to correcting minor errors, to refusing or allowing this appeal to the upper tribunal.
If they refuse, you can directly appeal to the UT.
If they allow the appeal, the UT hearing goes ahead, and they can then either set aside the verdict of the original tribunal and order a re-hearing, decide the outcome (rare), or refuse or allow the appeal.

Depending on what happens, this can take weeks or most of a year.

In my particular case, I appealed the decision of a tribunal, got refused permission to appeal, and then submitted an appeal to the UT to make an appeal.

The UT judge misread the grounds of my appeal and denied it, and the appeal of this decision to be set aside failed.
This took about 10 months from memory - I'd have to look at the exact dates.
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# 5
tn48884
Old 30-04-2013, 9:34 AM
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oh my so its going to be a while! I guess we will just hold tight! We have applied again for the ESA so are awaiting paper work from this.. fingers crossed!

Thanks again!
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# 6
Solitaires
Old 30-04-2013, 10:55 AM
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As a matter of interest, what are the points of law that you can appeal to the Upper Tribunal?

I'm just wondering on what grounds you can do so.
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# 7
tn48884
Old 30-04-2013, 11:35 AM
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I dont know Im afraid.. welfare rights are pretty much doing everything for him.

With my dad they have wrote that he can walk 100 meters to his local shop unaided, there and back. On the recorded cd my dad clearly states that he cannpt walk 30-40 meters without having to stop and that he has to be driven there as he cant manage the 100 meters walk withought pain and difficulty. The ignored what he had said.

They asked him if he could go places un aided (my dad suffers from mental health issues and mobility issues). He said he can go to familiar places himself but anywhere knew he wuld need accompanied by a family member. He stated that he doesnt socialise outside his home or in a families home as he feels nervous and panicky. They dismissed what he had said and wrote he goes out socialy and can go places unaided/supported. No mention of his anxiety issues.

They had asked if he could use a wheel chair. He said he had never used a wheel chair but due to his mobilty issues (spinal/nerve problems) he thought it make put pressues on his spine if using his upper arms. The never mentioned this and said that he could use a wheel chair as he pushed himself out of his seat when leaving. He has never been asessed for a wheel chair so they do not know if this would cause more problems or not.

I hope this helps you a little x
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# 8
rogerblack
Old 30-04-2013, 1:22 PM
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Quote:
Originally Posted by Solitaires View Post
As a matter of interest, what are the points of law that you can appeal to the Upper Tribunal?

I'm just wondering on what grounds you can do so.
Speaking in generalities.
You cannot appeal to the upper tribunal on matters of fact - decisions the tribunal has made on the facts - unless they have either come to their decisions by ignoring evidence they should have considered, or that decision is so badly wrong that no reasonable person would have made it.
(This is FAR past 'was the decision reasonable')

You can appeal on the grounds that they did not take into account evidence they should have done (this is NOT the same as them dismissing the evidence), or that they misapplied the relevant law.

For example, errors of law would be (for a ESA tribunal) to state that how the claimant would get to a workplace is irrelevant - their condition must be assessed as if they can do the test without the exertion/stress of travel/getting dressed/... - as there was a decision of the upper tribunal stating this is not the case.
Or to apply the wrong version of the descriptors - for example if the decision being appealed was before March 28 2010, and using the descriptors for after that date.
Or ignoring relevant evidence.
Or providing an inadequate statement of reasons that did not explain how they came to their position, in regard to all the evidence.

http://www.disabilityrightsuk.org/ap...bunal-decision may be very useful.

Legal aid cannot in general now be gotten to help with this appeal.
This lack of funding may severely impact anyone trying to get representation for this - or help with preparing an appeal - as much funding for this sector was provided through legal aid.

Last edited by rogerblack; 30-04-2013 at 1:31 PM.
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# 9
Mersey
Old 30-04-2013, 3:32 PM
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Sorry, I meant to say that it took 12 months to wait for the FT Tribunal hearing. The Upper Tribunal didn't take too long. It was waiting for the written Statement of Reasons (9 weeks) that took time. I think the UT only took around 6 weeks.

Some ideas and case law which may help you, as we succeeded:

I submit the following in my Request for Permission to Appeal to the Upper Tribunal.

Tribunal Judge XXXXXXX failed to consider properly and/or make a finding of fact re the following:-
(i) ‘Good cause’
It was the Appellant’s case that the JobCentre Plus Decision Maker (DWP), applied the Rules incorrectly, given DM34691.
Further, Tribunal Judge Samuels failed to consider this point and he in fact stated that he had not been supplied with the Decision Makers’ Guide.
I submit that it would be pointless for the Decision Makers’ Guide to contain paragraph DM34691, if the Claimant/Appellant could not cite the same as ‘good cause’ before a Tribunal.
Re the Statement of Reasons: I would agree with the final two sentences of XXXXXX; but, that is not the Appellant’s contention and is not what was submitted in written evidence, pp XXXXX, before the Tribunal on XXXXXXXX.
I cite the following authoritiy in this regard:
Judge Rowland concluded in C1/747/2011 [2011] UKUT 465 (AAC):
It is a good rule of thumb that the principal argument advanced by the losing party should be expressly addressed in the Statement of Reasons. This is required as a matter of fairness because it is only by giving reasons that it has in fact given proper consideration to the arguments.”

Tribunal Judge XXXXXX appears to have misread or misunderstood my submission re the Back to Work Session (BTW). I did not attend a different type of BTW session subsequently and therefore my description of the basic English and Maths exercise is a true account of the reality of the BTW session.

(ii) Erred in fact (or failed to consider the submission)
I submit that Tribunal Judge XXXXXXX failed to consider thoroughly my chronology and therefore did not consider all aspects of the Appellant’s case.
Para X of the Statement of Reasons is disputed. See para XX of the Bundle, para X.
I cite the following authorities:
Where there is a conflict of evidence, the Tribunal should attempt to consider this. Upper Tribunal Judge Overy citing CIB/2308/2001 in CE/428/2011[2011] UKUT 386 (AAC).
The Tribunal should have regard to Article 6 of the European Convention in determining whether a right of appeal should be granted.

Para 9
I would agree with Tribunal Judge XXXXXX if that had been the case and my submission. However, my point was that the Job Seekers Direction (JSD) may not have been printed or sent out at all; or, if it was, it should not be deemed as having been received, as JobCentre Plus has failed repeatedly to write to the Appellant’s full correct postal address [and has since admitted maladministration on their part] as evidenced by an envelope I took to the Tribunal and showed to Tribunal Judge XXXXXX. This point has also not been considered in the Statement of Reasons.

In pXX & XX, para X, JCP concedes human errors by JCP and also IT failures meaning letters could not be sent out.

(iii) Omissions in Statement of Reasons
I submit that the following points were discussed at Tribunal, in oral evidence of the Appellant and both the Appellant and the Tribunal Judge referred to the letter of Merseyside JobCentre Plus Senior Business Manager [Mr XXXXXXXXXXXXXX], but are not mentioned in the Statement of Reasons.

Para 4
It is not disputed that G45 Appeal form was submitted. Subject Access Request printouts confirm that it was received by Birkenhead BDC on XXXXXXXX and sent to Williamson Square JobCentre Plus on XXXXXXXXXX [see pp XXXXXX Bundle]

Finally, I make no criticism of Tribunal Judge XXXXXXXX personally and he was very polite throughout. However, when the Tribunal Clerk left the room in order to photocopy a page, Tribunal Judge XXXXXXXX did state that he had a very heavy caseload that day [XXXXXXX], with each case taking a long time. By way of background, I was called to go in some 40 minutes late at 12.00pm for my 11.20am listing and I submit that the constraints placed upon Tribunal Judge XXXXXX on the day of this Appeal, led to the evidence in the same not being as thoroughly examined as would otherwise have been the case. This was further exacerbated by the fact that the DWP had not number referenced the Appellant’s two bundles. It also took some 9 weeks for the Statement of Reasons to be supplied to the Appellant.
I submit that permission to Appeal should be granted, given all of the above and in order to have regard to the overriding objective to deal with the case fairly and justly.
-
Good Luck!
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# 10
benefitbaby
Old 30-04-2013, 7:14 PM
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Quote:
Originally Posted by tn48884 View Post
oh my so its going to be a while! I guess we will just hold tight! We have applied again for the ESA so are awaiting paper work from this.. fingers crossed!

Thanks again!
You may find this useful http://www.disabilityrightsuk.org/ap...bunal-decision

This sets out the whole process, and at paragraph 8 details "what are errors in law" etc. Good luck
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# 11
tn48884
Old 01-05-2013, 8:12 AM
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Quote:
Originally Posted by benefitbaby View Post
You may find this useful http://www.disabilityrightsuk.org/ap...bunal-decision

This sets out the whole process, and at paragraph 8 details "what are errors in law" etc. Good luck

Thanks x
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