Advice on ESA Tribunal

evouk · 8 August 2017 at 4:41PM

Hi,

I have been involved in a dispute with the DWP over ESA for over a year now. Back in May 16, I was called to inform me that after my WCA, I had been declared fit for work. I was obviously outraged by this and asked for a MR via the phone call and then later sent in my written request. Several weeks later, after not hearing anything, I contacted them to be informed that they had never received my MR request. This then led to several months of disputes with them claiming I'd never asked for one and me explaining that even though my written request was 'lost in the post', I had verbally asked for it over the phone and should not be denied it.

This then went to the Complaints Resolution Manager who did his own investigation but then decided to uphold the original decision as apparently my call was not recorded, and the gentleman who had originally phoned me back in May didn't remember the call. Anyway, this went to the next tier of the Complaints Resolution who then magically realised the call did exist and after listening to it, decided to give me my MR after all. AKA, they realised I was correct all along. I however got no apology and I doubt the gentleman who made the huge stuff up which caused me over a year of stress will ever be reprimanded.

Anyway, I got my MR eventually but no surpise they upheld the original decision despite me sending irrefutable evidence that the HCP who did the assessment was factually incorrect about my condition and had even exaggerated the length of the assessment etc. I have shown his report to 2 GP's and a Physiotherapist and all have said its nonsense.

So I am now finally at the point of being able to go to the independent tribunal but I would appreciate some advice about how to approach it? Do I send in a lengthy written report explaining where the HCP is wrong and all the maladministration problems I have had with them or is it just as simple as requesting the tribunal and then explaining all this in person?

At the tribunal, will they not be interested in my evidence were the HCP had misrepresented my condition and focus just on my disability and how it affects my ability to work?

I just would like to understand more about the tribunal process!

Thanks.

Muttleythefrog · 8 August 2017 at 5:27PM

First you've obviously had a bit of a horror here.... a good example perhaps where it is essential to put in writing the details of a MR request and ensure they have received it. I would always advise putting in writing (even if advising of MR request on phone) anyway as you can lay out clearly your case... and checking a few days later they've got it even if you send signed for delivery and have it confirmed there.

Anyway... key here is put that aside.... you are requesting an appeal at tribunal.

Focus on the descriptors that you feel apply to you regarding the WRAG and if applicable Support group or special circumstances. Put in writing which descriptors you feel apply and explain why and what evidence points to such... include any evidence not already included in the paperwork of your case. You might find yourself having to contest things like the ESA85 assessment report in detailing what descriptors you feel should apply. You might choose to give a general comment on the inaccuracy of the report in addition by highlighting clear factual errors as example in order to prompt a tribunal panel to seriously consider being of limited consideration of its contained descriptor selections.

At the tribunal itself... and I do advise going.. and with a supporter if possible... you'll be asked questions... and hopefully they'll find you useful in relaying facts they feel are necessary in addition to the paperwork supplied in order to reach a hopefully more accurate determination of what descriptors apply and then award either WRAG or Support group. Key to remember.. this is not a determination of whether you can work or not... this is a determination of what disabilities reduce your capacity to engage in work or work related activities. The descriptors and the categories of disability they are in are there to determine just how significant a barrier to working claimants face by looking at the sorts of activities someone needs to engage in typical work.

I would ignore the mal-admin issues in your appeal submission and I would not raise it at appeal unless directly asked about it by the panel.... because it is irrelevant now... you are appealing against the DWP reconsideration decision of date x that found you to not have limited capability for work... and you are asking a tribunal to re-make that decision for themselves and replace it hopefully in your favour with a decision ultimately that you have limited capability for work (WRAG) or limited capability for work related activity (Support group). The DWP's mal-admin is not a factor in that although naturally as human beings they may well have some sympathy for your troubles with the DWP.

If you can acquire any additional evidence... medical reports etc... that supports your case that descriptors apply then get that into the process. Often with ESA claims (and PIP for those claiming disability benefit) medical reports and similar are unfortunately not very good at giving opinion or facts specifically relevant to the tested criteria... however if you get evidence that is (and is applicable to around the time of the decision challenged) then it should be influential to a tribunal.

Alice_Holt · 8 August 2017 at 5:33PM

This explains the tribunal process. It relates to PIP, but the process is virtually the same for ESA:
http://www.advicenow.org.uk/guides/how-win-pip-appeal

The key is to clearly show the panel how the appropriate ESA descriptors apply to you:
https://www.benefitsandwork.co.uk/employment-and-support-allowance/start-the-esa-test
http://www.cpag.org.uk/content/making-exception

- back up your argument with relevant evidence (particularly medical evidence).
If the evidence references the ESA descriptors, so much the better.

https://www.benefitsandwork.co.uk/employment-and-support-allowance/esa-appeals
https://www.citizensadvice.org.uk/benefits/benefits-introduction/problems-with-benefits-and-tax-credits/challenging-a-benefit-decision/challenging-a-dwp-benefit-decision-on-or-after-28-october-2013/appealing-against-a-benefit-decision/appealing-against-a-dwp-benefit-decision/

Keep your statement brief and to the point of the ESA descriptors. Although pointing out flaws in the WCA can be helpful, don't go overboard in your criticism - the key is to show how ESA descriptors apply.
Keep a diary, which you can then use to give examples to the panel.
The tribunal will be reviewing the DWP decision, so will consider your condition at the date of that decision to disallow ESA.

evouk · 8 August 2017 at 5:45PM

Thank you both for your replies, I'll definitely take all this info on board.

What's interesting is that I also went through the PIP process, was awarded points but not quite enough, so I wrote a really good detailed report arguing logic and common sense, in addition to including a doctors letter, and they quickly reversed the decision on MR and awarded me the higher rates for both components.

I know they are two separate departments but I'm hopeful if I can prove one to be incorrect then I can do the same with the other.

epitome · 8 August 2017 at 8:50PM

evouk wrote: »

Hi,

I asked for a MR via the phone call and then later sent in my written request. Several weeks later, after not hearing anything, I contacted them to be informed that they had never received my MR request. This then led to several months of disputes with them claiming I'd never asked for one and me explaining that even though my written request was 'lost in the post', I had verbally asked for it over the phone and should not be denied it.

This then went to the Complaints Resolution Manager........

Why did you not simply write another one and have it faxed by the jobcentre? or on a phonecall, ask for another one to be sent by in their HOTT system with a request for confirmation call back within 24 hours that your MR request has been recieved and will be acted on?
Saving yourself months of hassle.?

In the Tribunal submission, Just stick to the facts about why you think, on the day of the assessment, (anything that has changed since the decision date is irrelevant) you think their decision is wrong and which ESA descriptors or Risk categories you think you satisfy.

Delays in Man Recon process is irrelevant

Errors by the HCP whether deliberate or not are (IMHO) largely irrelevant, this is the whole point of the appeal, because you say they got it wrong, and you say why they got it wrong you submit evidence, if the Tribunal agrees they got it wrong, they are agreeing the HCP got it wrong.

Advice on ESA Tribunal

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