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  • FIRST POST
    • whambam
    • By whambam 29th Sep 17, 9:38 PM
    • 179Posts
    • 22Thanks
    whambam
    Appeal An ESA Tribunal Fail
    • #1
    • 29th Sep 17, 9:38 PM
    Appeal An ESA Tribunal Fail 29th Sep 17 at 9:38 PM
    Hi,

    Has anyone done this as my tribunal failed and the letter had no appeals procedure? My adviser said I could appeal?
Page 1
    • Diary
    • By Diary 29th Sep 17, 9:48 PM
    • 573 Posts
    • 751 Thanks
    Diary
    • #2
    • 29th Sep 17, 9:48 PM
    • #2
    • 29th Sep 17, 9:48 PM
    Hi,

    Has anyone done this as my tribunal failed and the letter had no appeals procedure? My adviser said I could appeal?
    Originally posted by whambam
    An appeal to the upper tribunal can only be done due to an error in law at the first tribunal. You will need face to face competent advise to even attempt this. Do you trust your adviser when s/he says you can appeal to the upper tribunal?
    • Alice Holt
    • By Alice Holt 30th Sep 17, 12:08 AM
    • 1,577 Posts
    • 1,682 Thanks
    Alice Holt
    • #3
    • 30th Sep 17, 12:08 AM
    • #3
    • 30th Sep 17, 12:08 AM
    First stage is to request a Statement of Reasons from the Tribunal Service (this is set out in the decision letter).
    Second stage is to identify an Error in Law in the S of R
    Set this out in a letter to the First Tier Tribunal asking for permission to appeal to the Upper Tribunal
    Then following the response of the FTT you can appeal to the UT to have the decision set aside.

    The tricky bit is finding an error in law. It could be:
    That the FTT has preferred one set of evidence to another without justifying why;
    A breach of natural justice;
    Has erred in its application of law or caselaw.

    As Diary suggests you need specialist advice.
    And to be successful an appeal request needs to potentially allow a change of that decision (i.e get you to 15 points or Reg 29).
    Last edited by Alice Holt; 30-09-2017 at 12:11 AM.
    • Muttleythefrog
    • By Muttleythefrog 30th Sep 17, 12:09 AM
    • 10,913 Posts
    • 20,348 Thanks
    Muttleythefrog
    • #4
    • 30th Sep 17, 12:09 AM
    • #4
    • 30th Sep 17, 12:09 AM
    Your adviser needs to give you better technical advice than 'you can appeal'. If they're not competent try to get another adviser. Bluntly put if you have lost your appeal tribunal then the legal process is over unless you can show the tribunal have made an error in law. An error in law is very different than got the decision wrong. An error in law would be something like they failed to apply the correct laws. Such an appeal of error in law would have to be made to an upper tier tribunal after requesting permission from the judge to appeal and you'd probably need to be technically minded or have good advocate making your case in writing. First stop for that course of action would be to request a statement of reasons from the tribunal so the judge can explain their decision. It is unlikely the tribunal made an error in law but sometimes they do. You might find an alternative course of action more useful like looking into making another claim down the line... I'm not sure on the technical timeline that would be sensible in that regard... but others will and so if you can please advise of the date you started your claim and the dates of the decisions the DWP made then it could be useful.
    Last edited by Muttleythefrog; 30-09-2017 at 12:12 AM.
    "Do not attribute to conspiracy what can adequately be explained by incompetence" - rogerblack
    • epitome
    • By epitome 30th Sep 17, 10:50 AM
    • 3,018 Posts
    • 1,833 Thanks
    epitome
    • #5
    • 30th Sep 17, 10:50 AM
    • #5
    • 30th Sep 17, 10:50 AM
    I think also to go to Upper Tribunal you only have 1 month, so you better get a move on, with proper legal advice. And in requesting that Statement of Reasons from the Tribunal.

    Or if you have no reason to think they got it wrong (legally)... you could just accept it and move on.
    • Alice Holt
    • By Alice Holt 30th Sep 17, 12:27 PM
    • 1,577 Posts
    • 1,682 Thanks
    Alice Holt
    • #6
    • 30th Sep 17, 12:27 PM
    • #6
    • 30th Sep 17, 12:27 PM
    I think also to go to Upper Tribunal you only have 1 month,
    Originally posted by epitome
    That's right.
    The OP has a month from the date on the decision letter to request the S of R.
    • whambam
    • By whambam 4th Oct 17, 10:29 PM
    • 179 Posts
    • 22 Thanks
    whambam
    • #7
    • 4th Oct 17, 10:29 PM
    • #7
    • 4th Oct 17, 10:29 PM
    I had documentation with me however they did not ask to view them is that an error in law?
    • poppy12345
    • By poppy12345 4th Oct 17, 10:33 PM
    • 1,752 Posts
    • 1,584 Thanks
    poppy12345
    • #8
    • 4th Oct 17, 10:33 PM
    • #8
    • 4th Oct 17, 10:33 PM
    I had documentation with me however they did not ask to view them is that an error in law?
    Originally posted by whambam
    Did they know you had this with you? Why didn't you send the to them before the date of the Tribunal?
    • epitome
    • By epitome 5th Oct 17, 8:53 PM
    • 3,018 Posts
    • 1,833 Thanks
    epitome
    • #9
    • 5th Oct 17, 8:53 PM
    • #9
    • 5th Oct 17, 8:53 PM
    As Poppy said, did you tell the judge you had it?

    What did the judge say about it?

    What documentation was it ...exactly?
    • Alice Holt
    • By Alice Holt 5th Oct 17, 9:46 PM
    • 1,577 Posts
    • 1,682 Thanks
    Alice Holt
    I had documentation with me however they did not ask to view them is that an error in law?
    Originally posted by whambam
    Maybe not.
    Evidence should be submitted to to Tribunal Service in advance of the hearing.
    This enables the TS to let all parties see all the evidence, and gives tribunal panel members an opportunity to review all the paperwork before they start the hearing and get your verbal evidence.
    Having evidence you didn't submit is not an error in law.

    It is unreasonable to arrive at the tribunal with many pages of additional evidence, take it into the hearing room, and expect the panel to digest it then and there. However, if you had, say, a short confirmation letter only just received from your GP / HCP - then it would be reasonable for you to hand 2 copies of this letter to the clerk in the waiting room and ask that the panel do consider this new evidence.

    So, it rather depends on your answers to poppy and epitome.

    You could try arguing that in the interest of justice the tribunal should have adjourned the hearing in light of this new evidence (providing that evidence was relevant and would have had a bearing on the decision).
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