Lost ESA tribunal need help please

turquoise75

My husband has had cancer for 18 years, had a very bad motorbike accident which has left him with severe back pain & a few years ago had pnuemonia, pluresy & consequently has badly scarred lungs,so has difficulty breathing.
For the past 18 years he has been on incapacity benefit. He has been to 4 tribunals over the last 18 years & won each one.
Last july he had to go for a medical & lost his appeal, scoring 0 points!
We appealed & have waited exactly a year for the tribunal which was last thursday. During the last year he has still been handing in sick notes from his GP who says he is not fit for work.
We both attended the tribunal & felt from the instant we entered the room we had lost, as the judge wouldn't let me speak to add details for my husband ( he is very shy & doesn't like speaking to strangers) & wouldn't let my husband speak about anything other the questions directly asked by the judge or the doctor present! We wanted to pick up on points in the medical assessment doctors report (especially the outrageous lies & things she made up) but had no chance to do so.I thought this was the whole point of the tribunal!
I started to tell them that my husband has had a course of chemo & that his consultant had discussed radiation therapy & even a transplant, & also that he is due again in hospital in just 4 weeks time & the judge just talked over me & changed the subject! There was a woman who came to speak to us before we went in who said she was there to take notes but she was in & out of the room every 2 minutes & i didn't see her write anything down at all.
Also as soon as my husband said he smokes 20 a day the judge was outraged which i felt put the final nail in the coffin, so to speak. He is well aware he needs to give up, he hears it everytime he sees a medical professional.

Anyway, we have 3 children & i am worried sick about what we are going to do for money. My husband phoned the ESA people when we received the letter saying he had lost (last friday) & the man said as he is still handing in sick notes he just needs to re apply for ESA but couldn't say how long it will take or what we do next.
So please can anyone advise us as to what we can do now?
Thank you.

Cpt.Scarlet

You can make a new claim for ESA, you can either contact the DWP and make the claim over the phone or fill in a printed copy of the ESA1 which you can download from the DirectGov website.

He won't qualify for Contribution Based ESA if he was previously on IB but providing you don't work more than 24 hours a week and don't have any other income or savings, you should get Income Related ESA.

He will have to complete a new ESA50 and likely attend an ESA medical.

With regard the tribunal, try and get face to face advice, it sounds like your hearing may not of been fair and as a result, you may be able to appeal the decision because of an error of law, but you will need help with this.

Just so you are aware, a tribunal can only review your husband as he was at the time the decision you appealed was made, so any deterioration or new conditions he had since then could not be looked at.

Muttleythefrog

Sorry to hear of the experiences. It is important to really focus on the criteria for the Work Capability Assessment throughout (I wonder if your attempts to focus on the ATOS medical report detracted from how he actually would qualify for ESA). I concur with Scarlet's advice above... new claim possibility... possibility of appealing on error in law (for which I would say you'll need legal advice). I had a bad experience of tribunal (DLA).. felt I'd lost within the first minute after an exchange with the GP... but it is important, as Scarlet has stated, to note that any medical problems arising since the DWP decision would have been irrelevant to the tribunal. Good luck.

atrixblue.-MFR-.

its sad to say this but your case was overseen in clerical (papers) phase by the panel and they had made up their mind then and just followed thorugh your request for a face to face hearing.

smoking is a relevant factor in wich in some cases can be your down fall espcially with cancer/lung function cases, as the symptoms can be smoking related.

look at this again in another light to a prospect of reclaiming ESA.

look at your supporting medical evidence and look at the descriptors for ESA wrag or support groups (WCA handbook has these descriptors) and concerntrate you efforts in filling out the form around those descriptors. keep a copy of the form for you to refure back to when a ESA50 drop on your door mat, they ask the same but in more detailed questions of sorts again send off any supporting medical evidence you have along with it, (it gives a better chance of not going to a face to face and decided in clerical phase's or pre board).

always send off photocopies, never originals.

benefitbaby

atrixblue.-MFR-. wrote: »

its sad to say this but your case was overseen in clerical (papers) phase by the panel and they had made up their mind then and just followed thorugh your request for a face to face hearing..... (it gives a better chance of not going to a face to face and decided in clerical phase's or pre board).

The tribunal does not (and should not) make any decision prior to an oral hearing, they can of course form opinions and determine a line of questioning but this is not the same thing and should not be confused.