Legal advice needed regarding a TRIBUNAL .

stapeley

On Thursday I attended a ESA assessment decision Tribunal . I was unaware that a previous decision of award of limited capability was based upon exceptional circumstances , rule 35 . This was from 2013 . I had never received a reason behind the award .
Having received no points at assessment in JUNE this year , I challenged it , as nothing in my conditions had improved . 6 days before the Tribunal I received the points and reasoning part of the decision that had been excluded from papers sent to me and the Tribunal dating from the previous decision. When I tried to question this the Judge would not listen or explain his reasons for not referring to it . It had given me no points but accepted me on exceptional circumstances.
So thinking I had failed this time on points, I went at the problem on completely wrong path.Not concentrating on risk as laid out in rule 35 . I was completely unprepared for the snub by the Judge dismissing my questioning the failure to supply the full paperwork , and thus unable to highlight my case properly on grounds of rule 35 . Can I ask for a review by the upper tribunal ? And am I justified in my complaint ?

paragon909

stapeley wrote: »

On Thursday I attended a ESA assessment decision Tribunal . I was unaware that a previous decision of award of limited capability was based upon exceptional circumstances , rule 35 . This was from 2013 . I had never received a reason behind the award .
Having received no points at assessment in JUNE this year , I challenged it , as nothing in my conditions had improved . 6 days before the Tribunal I received the points and reasoning part of the decision that had been excluded from papers sent to me and the Tribunal dating from the previous decision. When I tried to question this the Judge would not listen or explain his reasons for not referring to it . It had given me no points but accepted me on exceptional circumstances.
So thinking I had failed this time on points, I went at the problem on completely wrong path.Not concentrating on risk as laid out in rule 35 . I was completely unprepared for the snub by the Judge dismissing my questioning the failure to supply the full paperwork , and thus unable to highlight my case properly on grounds of rule 35 . Can I ask for a review by the upper tribunal ? And am I justified in my complaint ?

It's up to the claimant to provide statements to the courts for them to consider all the evidence, It's not for them to source the evidence or get it from DWP. Did you submit evidence from Doctors, CPN, Mental Health team etc that you should be in Support group for your own safety and others.

If you denied ESA, You need to request a statement of reason from the judge by calling the courts and asking them to send it out, You then need someone like citizens advice or some legal person who knows welfare laws to look at to see if they made any errors etc.

Alice_Holt

Firstly you need to request a Statement of Reasons from the tribunal (you need to do this within a month of the tribunal decision letter).
Read the Tribunal Decision notice for more info.

If you find that the tribunal has made an error in law you could then ask the Upper Tribunal to set aside the decision, and to schedule your appeal for a re-hearing. You may be able to base your request on the argument that there has been an error in law for the breach of natural justice in not allowing you to raise Regulation 35 at the appeal (dependent on the S of R's justification for their decision).


"If you have an Employment Support Allowance decision at the First Tier tribunal which
you are not happy with then you can appeal to the Upper Tribunal. Please note the
procedure below and, importantly, the timeframes. One of the main problems with this is
that you generally cannot submit additional evidence.
The question that the Upper Tribunal must face is whether the first tier tribunal made an error in law when considering the documents and testimony that they had on the day. This is another
reason why it is important to make sure that enough evidence is sent in for the original
first tier tribunal appeal.
The process
a. You must ask the tribunal which you have been dealing for a statement of
reasons and a record of proceedings. You must ask for this for within one month
of the tribunal decision. It can sometimes take a while for it to be sent to you, in
some cases this can be a number of months.
b. When you receive the statement of reasons then it must be compared to the
documents that were available on the day to see if there are any arguable points
which may be considered errors of law.
c. You then must apply for permission to appeal to the upper tribunal by writing to
the original tribunal. This must be done again within one month of the statement
of reasons. You must include a copy of the original decision you are appealing
against. You should also include the issues which you think are errors in law.
When you apply for permission you can also request that the judge set aside the
decision and start a new tribunal.
d. If the Judge refuses these requests then you can apply directly to the Upper
Tribunal. You must apply directly to the Upper Tribunal within one month of
receiving the decision. You must apply using the UT1 form which is available on
the Upper tribunal website: http://www.justice.gov.uk/guidance/courts-andtribunals/tribunals/aa/form/index.htm.

The question of whether you appeal or not is based on whether the tribunal have made
an error of law. It does not matter if you did not have the best evidence with you. Nor
does it matter if you have better evidence now. The Upper tribunal will only look at the
decision the tribunal made on the day with the evidence they had in front of them at the
time.
What is an error of law?
a. The tribunal were wrong in there application of the law, i.e. it misinterpreted a
previous decision or a statute.
b. There was no evidence to support the decision that the tribunal came to.
c. The tribunal made decisions after getting the facts wrong in the case.
d. A breach of procedure/breach of natural justice, for example: irrationally not
allowing an adjournment; not allowing you to call witnesses; no interpreter or bad
interpretation; you did not get notice of the hearing; you did not receive the
Department of Work and Pensions’ submission; you asked for an oral hearing but
one did not take place.
e. The tribunal did not give adequate reasons for its decision.
f. The Tribunal accept a government Medical Report such as one performed by
ATOS Healthcare over your GP’s medical report without giving good reason of
choosing one over the other.

Not an error of law
It is not an error of law if a different tribunal would have come to a different conclusion
but the original tribunal did not make any of the above mistakes."

You may wish to get help from your local CAB / advice centre.

stapeley

The added stress has caused me to suffer a recurrence of serve migraine attacks that I suffered in my late teens and then again in my thirties. I am feeling lesson learned from the appallingly bad quality of assessment staff . And that now, fore warned about how to handle the process ,feel it may be better to reapply and start process again .

poppy12345

stapeley wrote: »

The added stress has caused me to suffer a recurrence of serve migraine attacks that I suffered in my late teens and then again in my thirties. I am feeling lesson learned from the appallingly bad quality of assessment staff . And that now, fore warned about how to handle the process ,feel it may be better to reapply and start process again .

You can only do this if your cureent condition has got a lot worse or you're claiming for a new condition. Best thing to do would be to speak to CAB to check you fall into the exceptions groups.

stapeley

Have no one that are in a position to support me, financially . I believe I have a case for a further appeal . Will I still be able to receive ESA at appeal rate , while I request leave to appeal the Tribunal ? Cab only operate once a week ,Fridays , in my area , really cant afford to go without a weeks benefits.

NeilCr

First up. You'll need the statement of reasons

I don't know for definite but I'd be surprised if ESA continues during the Upper Tribunal process. But I'm not certain and I haven't been able to find out anything online

Perhaps, someone else knows?

I strongly feel you should get advice re the Upper Tribunal appeal. It can only be done on legal grounds so someone with that sort of background would be extremely helpful

poppy12345

NeilCr wrote: »

First up. You'll need the statement of reasons

I don't know for definite but I'd be surprised if ESA continues during the Upper Tribunal process. But I'm not certain and I haven't been able to find out anything online

Perhaps, someone else knows?

I strongly feel you should get advice re the Upper Tribunal appeal. It can only be done on legal grounds so someone with that sort of background would be extremely helpful

You're right ESA payments won't continue during an Upper Tribunal process.

Alice_Holt

stapeley wrote: »

I believe I have a case for a further appeal . Will I still be able to receive ESA at appeal rate , while I request leave to appeal the Tribunal ? Cab only operate once a week ,Fridays , in my area , really cant afford to go without a weeks benefits.

You will not be able to receive ESA when asking the UT for a set aside. You can claim JSA or UC (UC depending on your area).

I do hope that you (as was suggested in your earlier thread) did get CAB advice with the first tier tribunal appeal. They will then have the appeal paperwork and may be able to help you identify an error of law. This is quite specailsed work, and not every CAB has the resources to advise. If the CAB were not involved in the first tier tribunal then you may need to seek out a regional law centre willing to take this on under legal aid.
Here is a list of Law Centres offering UT appeals help:
http://www.lawcentres.org.uk/lcn-s-work/welfare-benefits-upper-tribunal-service

HB58

Just a word of warning - even if you are able to take this to the Upper Tier, it could well take 12 months to be concluded.

GlasweJen

All you'll get from an UT is the right to have another tribunal. They won't change the decision