Failed ESA Tribunal - what now?

Any advice will be grateful please


Just received my letter from my Tribunal Appeal, they have only awarded me 6 points.

They accept i have problems, but not bad enough, even though my doctor is prepared to do as many sick notes and whatever back up letters i need to prove i do have problems.

It seems our doctors word means nothing now!

What can i do now?

I filled my limited capability for work questionnaire in on 26th August 2013 and had my medical assesment on 12th December 2014, they kept referring back to my questionnaire, even though my health has deteriorated since then.

If i sign for JSA im admitting i am fit for work.

I wont get contribution because i have been on IB for 6 years, and been told i might not get income related because my partner works - is it means tested?

gwendoline cripps wrote: Any advice will be grateful please


Just received my letter from my Tribunal Appeal, they have only awarded me 6 points.

They accept i have problems, but not bad enough, even though my doctor is prepared to do as many sick notes and whatever back up letters i need to prove i do have problems.

It seems our doctors word means nothing now!

What can i do now?

I filled my limited capability for work questionnaire in on 26th August 2013 and had my medical assesment on 12th December 2014, they kept referring back to my questionnaire, even though my health has deteriorated since then.

If i sign for JSA im admitting i am fit for work.

I wont get contribution because i have been on IB for 6 years, and been told i might not get income related because my partner works - is it means tested?

Hi gc,

I am sorry to hear that The Tribunal (TS) found against you !!

"I filled my limited capability for work questionnaire in on 26th August 2013 and had my medical assesment on 12th December 2014, they kept referring back to my questionnaire, even though my health has deteriorated since then."

This is because the Tribunal can not take into account a change or deterioration in your condition since the date of the 0 points fit for work decision.

They can only "re-look" at how you were at the time of the decision, and whether you should have received an ESA Award then.

Although they should have taken into account how you were at the time of the 0 points decision, rather than how you were with respect to the stated limitations in your ESA50 some 17 to 18 months earlier.

If they used this ESA50 as an main part of their decision making process, that may be open to challenge as it was not current at the time of the 0 points decision.

Options :

You could look into your options regarding appealing to The Upper Tier Tribunal, (UTT) and if at all possible you should seek professional advice on this from the CAB or the like :

Where to get advice

Or, try putting Welfare Rights Advice for your Town/Postcode into Google.

I don't know where you live, but if it is in one of the areas covered in the information given in the link below, they may be able to help, or direct you to someone that can :

Legal Aid for UTT Appeals for London, East, S/E England and The Midlands.

Legal Aid is still available for appeals to The UTT.

You first step would be to request a Written Statement of Reasons (S of R) from The Tribunal to gain an explanation of how and why they came to their decision :

Tribunals – Requesting a Statement of Reasons

This must be done within one month of the date of The TS Decision Notice letter that you have received.

Sending Documents to the DWP or The TS.

You or your Rep, would then have to show that The TS had "erred in law" in coming to their decision, in order to appeal to The UTT :

What is an Error of Law?

ERROR IN LAW :

"Errors in Law” can include : Insufficient findings of fact, failure to explain why they have disregarded any evidence favourable to the appellant, failure to explain why they’ve relied on any material evidence against the appellant particularly where that evidence was put at issue by the appellant, complete mishandling of relevant evidence or applying the law incorrectly, etc.

See also : Appealing to The Upper Tier, DR UK Factsheet

Even if your request to appeal to The UTT is accepted, this will not result in any ESA payments whilst the UTT Appeal process in ongoing.

You could make a fresh claim for ESA whether you appeal to The UTT or not :

www.gov.uk/employment-support-allowance/overview

As this would be classed as a repeat claim, you would have to provide documented evidence from your G.P. (Fresh fit note, etc) that your conditions and resulting limitations had changed or deteriorated since the time of the 0 points award to such an extent that you now score enough points for a WRAG award, and/or qualify under at least one of The Support Group (SG) descriptors.

Even if your repeat claim is accepted, you may not receive any payments of ESA.

It looks very much from what you have written that you would not be entitled to Contribution Based (CB) ESA, and if you cannot pass the means test for payment of Income Related (IR) ESA with respect to capital, assets, savings, household income and any hours worked by your partner, you will not receive payment of IR ESA either.

If your partner works more than 24 Hours/Week, this would definitely preclude entitlement to payment of IR ESA :

24 hour work rule for ESA(IR)

Asset rule for ESA(IR)

From our : ESA FAQ’s

It might be best to make your ESA claim and let the DWP tell you whether you have CB ESA or IR ESA entitlement.

See our : ESA Claims Guides

It would be similar for JSA, although the rules are slightly different.

Again, if you were to consider claiming JSA, let them tell you that you have no entitlement.

bro58

bro58 wrote:

gwendoline cripps wrote: Any advice will be grateful please


Just received my letter from my Tribunal Appeal, they have only awarded me 6 points.

They accept i have problems, but not bad enough, even though my doctor is prepared to do as many sick notes and whatever back up letters i need to prove i do have problems.

It seems our doctors word means nothing now!

What can i do now?

I filled my limited capability for work questionnaire in on 26th August 2013 and had my medical assesment on 12th December 2014, they kept referring back to my questionnaire, even though my health has deteriorated since then.

If i sign for JSA im admitting i am fit for work.

I wont get contribution because i have been on IB for 6 years, and been told i might not get income related because my partner works - is it means tested?

Hi gc,

I am sorry to hear that The Tribunal (TS) found against you !!

"I filled my limited capability for work questionnaire in on 26th August 2013 and had my medical assesment on 12th December 2014, they kept referring back to my questionnaire, even though my health has deteriorated since then."

This is because the Tribunal can not take into account a change or deterioration in your condition since the date of the 0 points fit for work decision.

They can only "re-look" at how you were at the time of the decision, and whether you should have received an ESA Award then.

Although they should have taken into account how you were at the time of the 0 points decision, rather than how you were with respect to the stated limitations in your ESA50 some 17 to 18 months earlier.

If they used this ESA50 as an main part of their decision making process, that may be open to challenge as it was not current at the time of the 0 points decision.

Options :

You could look into your options regarding appealing to The Upper Tier Tribunal, (UTT) and if at all possible you should seek professional advice on this from the CAB or the like :

Where to get advice

Or, try putting Welfare Rights Advice for your Town/Postcode into Google.

I don't know where you live, but if it is in one of the areas covered in the information given in the link below, they may be able to help, or direct you to someone that can :

Legal Aid for UTT Appeals for London, East, S/E England and The Midlands.

Legal Aid is still available for appeals to The UTT.

You first step would be to request a Written Statement of Reasons (S of R) from The Tribunal to gain an explanation of how and why they came to their decision :

Tribunals – Requesting a Statement of Reasons

This must be done within one month of the date of The TS Decision Notice letter that you have received.

Sending Documents to the DWP or The TS.

You or your Rep, would then have to show that The TS had "erred in law" in coming to their decision, in order to appeal to The UTT :

What is an Error of Law?

ERROR IN LAW :

"Errors in Law” can include : Insufficient findings of fact, failure to explain why they have disregarded any evidence favourable to the appellant, failure to explain why they’ve relied on any material evidence against the appellant particularly where that evidence was put at issue by the appellant, complete mishandling of relevant evidence or applying the law incorrectly, etc.

See also : Appealing to The Upper Tier, DR UK Factsheet

Even if your request to appeal to The UTT is requested, this will not result in any ESA payments whilst the UTT Appeal process in ongoing.

You could make a fresh claim for ESA whether you appeal to The UTT or not :

www.gov.uk/employment-support-allowance/overview

As this would be classed as a repeat claim, you would have to provide documented evidence from your G.P. (Fresh fit note, etc) that your conditions and resulting limitations had changed or deteriorated since the time of the 0 points award to such an extent that you now score enough points for a WRAG award, and/or qualify under at least one of The Support Group (SG) descriptors.

Even if your repeat claim is accepted, you may not receive any payments of ESA.

It looks very much from what you have written that you would not be entitled to Contribution Based (CB) ESA, and if you cannot pass the means test for payment of Income Related (IR) ESA with respect to capital, assets, savings, household income and any hours worked by your partner, you will not receive payment of IR ESA either.

If you partner works more than 24 Hours/Week, this would definitely preclude entitlement to payment of IR ESA :

24 hour work rule for ESA(IR)

Asset rule for ESA(IR)

From our : ESA FAQ’s

It might be best to make your ESA claim and let the DWP tell you whether you have CB ESA or IR ESA entitlement.

See our : ESA Claims Guides

It would be similar for JSA, or though the rules are slightly different.

Again, if you were to consider claiming JSA, let them tell you that you have no entitlement.

bro58

Hi gc,

After re-reading your post, I have added a couple of paragraphs :

"Although they should have taken into account how you were at the time of the 0 points decision, rather than how you were with respect to the stated limitations in your ESA50 some 17 to 18 months earlier.

If they used this ESA50 as a main part of their decision making process, that may be open to challenge, as it was not current at the time of the 0 points decision."

You need to request the Written S of R from The TS within the one month deadline !


bro58