Problem with DLA Tribunal, Need To Appeal

sarah2012

Hi All
I wonder if anyone has any ideas of what I can do next.
First of all, a bit about my situation :-
My husband has been on DLA since 2004,"lower mobility, middle care" with mental illness and his nerves, he was hospitalised in December 2003. In 2009 I received careers allowance, then Feb this year his DLA and my careers allowance was stopped, they said in their opinion we do not need it anymore?
We appealed to the DWP, and they turned us down, we then appealed to the tribunal, this took months and months we got a date of July "we were not going to turn up in person, because of my husbands nerves, nor would he let me go by myself" but we waited for the result of the case, we received a letter a few days later saying that the case was adjourned to the next available date with a time estimate of 1 slot at Chester "the original case was in Liverpool".
They wrote, the tribunal find that it is in the appellants best interest to attend a oral hearing, the adjournment is orderd because the tribunal is not ready to proceed.
I told them he would not go. Anyway they gave a new date of 21 November, in the mean time My husband had a heart attack and was rushed to hospital on 10 October.
The hospital social worker wrote to the court to see if they could adjourn because of ill health and stress, they wrote back saying NO they would not adjourn and it was still going ahead, I gave them letters from the surgeon and GP.
Anyway the tribunal went ahead and again we were denied.
So my only option is to take it to the upper tribunal, but I do not know how to do this.
Has anybody done this, and how did they get on.
Any help would be kindly received
Thank you
Sarah

nannytone_2

you cant just go to the upper tribunal because the original tribunal denied your appeal.
it can only be done on a point of law, where a mistake has been made with the procedures and technicalities of the case.

Muttleythefrog

As above. It's important to understand that now the (lower aka first-tier) tribunal has taken a decision then you can only challenge in legal terms on grounds that an error in law has been made by the tribunal. (An error in law isn't that they reached a decision you disagree with.. it is where the tribunal failed to apply the law properly or made some procedural error). To make a case for such (usually initially to the actual tribunal judge whom first should be requested to supply a written statement of reasons for his tribunal's decision, and if no success then to an upper tier judge) will likely require proper legal advice upon good examination of the judge's statement of reasons... and it may be determined there are no legal grounds for challenge. If you were successful then the tribunal may effectively be struck out and a new one ordered. If you get some good advice it may turn out that the best option is to re-apply for DLA... make a fresh claim.. .and preferably with more supporting evidence from those involved in husbands treatment/care.

I felt I had a pretty strong case that the tribunal made an error in law in my case (used an incorrect fact) and it came to no fruition. I required the legal support of the CAB who dealt with the paperwork regarding challenging the tribunal.

On general point it may not be helpful because of the circumstances of your partner... but statistically DLA appeals are much more likely to succeed where the appellant is represented or present. The obvious assumption is that powerful evidence can be presented by the appellant or by someone who understands their circumstances. The general advice therefore tends to be.. even if it is going to be a nightmare try to get an oral hearing and attend. In fact there may be nothing more compelling to a tribunal panel than having someone in front of them clearly suffering from some of the very problems they are claiming they do.

This document may help clarify matters a little.

http://www.dls.org.uk/advice/factsheet/welfare_benefits/DLA_appeals/DLA%20Appeals%20Factsheet.pdf

Cpt.Scarlet

You can't do anything further without asking for a full, written Statement of Reasons from the Tribunal judge who heard your case. You must make the request within one month of the Tibunal hearing, in writing to the Tribunal office, that managed your hearing. This can take 3-4 months to be prepared and returned, so be patient.

As others have said, you will need to find an advisor with experience in this area.

You can make a fresh claim for DLA which can run in parallel to any appeal you might make, so it's well worth doing so as your husbands condition has deteriorated.

sarah2012

Hi Thank you for the link muttleythe trog.
They came to their conclusion on 21 Nov, received letter 2 days later, I wrote for a statement of reasons, and I received this on 17 Dec

The law applicable is the social security contributions & benifit act 1992 sections 72 &73 + social security (dla) regulation 1991.
Gp had no knowledge of appellants mobility insight & awearness of danger or ability to self care.
The appellant produced no further medical evidance.
page 180-181 nothing to suggest that apellant would suffer self-neglect or be a danger to himself or require supervision outdoors, he would be expected to be fully self caring.
The appellant did not attend the appeal hearing on 21 Nov, wrote around 27 Oct to say he was unwell on the 10 Oct & taken to hospital, and because of the stress would not attend the hearing, they decided to proceed.
They say that he was managing his condition and receiving no specialist care.
Section 6 of the appeal papers we respectfully agree with the responce in paragraphs A- I & adopt them in the reasons for our decision.
In our view the appellant actually receives but does not reasonably require the assistance he gets.

This is what they wrote, it contradicts everything that I have told them. He is on several medication after his heart attack, his surgeon was supposed to write to them as was the hospital social worker "she did write because she asked for it to be adjourned but this was turned down". He also does see his GP, and the GP does know his details, the GP has agreed to write them a letter, I went to see him today and he was not surprised about the outcome as it has happened to several of his patients?
I know that the upper tribunal is based just on the law, so I was wondering if I could appeal on the breach of natural justice, because they did not allow an adjournment, after his heart attack, and yet they adjurned it themselves.
I know that I am clasping at straw, but I have not told my husband yet that we received the letters saying that he was not getting DLA and that I am no longer his career "officially".
So I do not know how to proceed.
Any help or advice greatfully received.

Cpt.Scarlet

I'm afraid they cannot consider the heart attack, only his condition as it was in Feb when the DLA was cancelled.

You may find it difficult to argue the adjournment as you had previously applied for a Paper hearing (where you do not attend).

As has been said before, you need specialist advice, try your local CAB, even if they cannot help you, they may be able to point you at someone who can.

Muttleythefrog

As per Scarlet... it's important to remember the tribunal in effect is trying to redetermine the DWP decision you appealed against... and so has to look at your husband's problems at or around that time (even though the tribunal sits many months later and possibly with other evidence that they feel applied at around the time). If care/mobility needs increase then a supersession can be requested or new claim made... these are the mechanisms in place to deal with the issue of notably changed circumstances.

Again as per Scarlet.. arguing that a breach of natural justice occurred because an adjournment wasn't given may be difficult given the reason for the adjournment you seem to invalidate yourself (I'm reading that you didn't want one because there was no intent to attend an oral hearing). In fact from what is written here it seems the tribunals service went to some effort to try to enable an oral hearing despite one not being wanted... because they felt it may help his case.

But yes... I think if you intend to take this further then having a professional sit down with the papers will be necessary to offer good relevant advice. I would just be weary of any deadlines or delays that may apply regarding actions you may wish to take.

sarah2012

Hi muttleythefrog,
Thank you for the information, I will try to contact somebody by phone, I can not just go and visit places, it is complicated, my husband also suffers from OCD, and he would just freak out if I went to the C A B or the likes, but I will try to get something sorted.
Yes you are right I would not have been at the hearing, I was just clasping at straws?

They say he was not in need at the date of the decision back in Feb, but how do they know, no one has asked to examine him, they have just gone by the world of a nurse, they did this 3 or 4 years ago, the same thing, but that went in our favour after a tribunal appeal hearing, so I thought this to would have gone the same way.
Thank you for your help.
Sarah

tomjonesrules

sarah2012 wrote: »

Hi muttleythefrog,
Thank you for the information, I will try to contact somebody by phone, I can not just go and visit places, it is complicated, my husband also suffers from OCD, and he would just freak out if I went to the C A B or the likes, but I will try to get something sorted.
Yes you are right I would not have been at the hearing, I was just clasping at straws?

They say he was not in need at the date of the decision back in Feb, but how do they know, no one has asked to examine him, they have just gone by the world of a nurse, they did this 3 or 4 years ago, the same thing, but that went in our favour after a tribunal appeal hearing, so I thought this to would have gone the same way.
Thank you for your help.
Sarah

Did you submit any medical evidence to support what his needs were in February?

I appreciate the difficulties you have in getting outside help, but it sounds like you have managed the review and appeal pretty badly. That is not a criticism, more an observation that for any future actions you need to get some help. Have you looked into whether there are any advocacy projects near you? Sometimes they will do home visits.

With regard to a second appeal, based on the information given I doubt you would even get a hearing. The tribunal have to all intents followed your wishes in making a decision in your absence. Given that your husband was unable to attend either of the earlier hearings, they had good reason to assume he would not attend a new date.

rogerblack

In addition, a fresh claim for DLA should be made now, outlining the worsened circumstances.
This is separate from the (apparantly weak) arguments for the judgement to be set aside, or to appeal to the upper tribunal.

One argument may be that it was a breach of natural justice for the tribunal not to send a doctor to your home.

This would only be if you've clearly stated (and there was enough evidence) that you could not travel.

GlasweJen

The heart attack can't be applied for if it happened in October due to 3 month rule. Also recover from heart attack can be fairly quick, might be difficult to get a doctor to agree to him still needing the same level of care in 6 months time,