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TOPIC: Lost my Appeal to Tribunal

Lost my Appeal to Tribunal 6 years 1 month ago #73050

  • sidarigirl
In went to the tribunal on Monday at xxxxx and was awarded 9 points for not being able to use a keyboard or mouse but got no points for not being able to write with a pen or a pencil which comes under the same category. Also ATOS said I had no muscle wastage which when I obtained my x-ray showed there was significant wastage. Unfortunately I could not get my records to send to them before the hearing. I spoke to them on the Friday before saying I had medical records and they told me to come early and present them to the clerk. I did not see her until the time of the hearing after being there over 30 minutes. They did not refer to them and the doctor present didn't say a word. I can't understand this points system. Don't know what to do now. :(


Mod edit - location of tribunal removed to prevent possibility of being identified.

pete17971
moderating team

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Last Edit: by . Reason: add mod edit

Re:Lost my Appeal to Tribunal 6 years 1 month ago #73055

sidarigirl wrote:

In went to the tribunal on Monday at xxxxx and was awarded 9 points for not being able to use a keyboard or mouse but got no points for not being able to write with a pen or a pencil which comes under the same category. Also ATOS said I had no muscle wastage which when I obtained my x-ray showed there was significant wastage. Unfortunately I could not get my records to send to them before the hearing. I spoke to them on the Friday before saying I had medical records and they told me to come early and present them to the clerk. I did not see her until the time of the hearing after being there over 30 minutes. They did not refer to them and the doctor present didn't say a word. I can't understand this points system. Don't know what to do now. :(


Mod edit - location of tribunal removed to prevent possibility of being identified.

pete17971
moderating team



Hi,

The only way forward from an unsuccessful tribunal appeal is to take ones case to the Upper Tier Tribunal. However this can only happen if an 'error in law has occurred at the 1st tier tribunal. You cannot take a case to the Upper Tier just because you disagree with the result.

However see here for what maybe classed as an error in law:

www.benefitsandwork.co.uk/forum?func=vie...mit=6&start=18#72205

It maybe an idea to write to the tribunal centre and ask for the 'Statement of Reasons' ie how the panel came to their decision. One this has been received, going through it with a welfare rights adviser/cab may possibly identify any errors in law.

If there are errors potentially the original tribunal can be set aside, and a new 1st tier tribunal convened.

Failing that, if six months have passed since your refusal by the DWP, or you have developed further conditions, it maybe possible to put in a new claim for esa.

Pete

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Re:Lost my Appeal to Tribunal 6 years 1 month ago #73070

sidarigirl wrote:

In went to the tribunal on Monday at xxxxx and was awarded 9 points for not being able to use a keyboard or mouse but got no points for not being able to write with a pen or a pencil which comes under the same category.

You can only score points for one descriptor in each of the ESA "categories", the one with the highest points value will be used.

So although you may meet the requirements for both the keyboard test and using a pen, you can only score points for one of them, and as both of these descriptors score nine points, the most you could score is therefore nine points.

Hope this explains it.

Gordon

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Nothing on this board constitutes legal advice - always consult a professional about specific problems

Re:Lost my Appeal to Tribunal 6 years 1 month ago #73136

  • sidarigirl
I understand that now but why could they not take into account muscle wastage which they were told I did not have but was in the medical evidence I submitted and they didn't bother to look at. What descriptor does that come under? Many thanks

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Re:Lost my Appeal to Tribunal 6 years 1 month ago #73158

sidarigirl wrote:

I understand that now but why could they not take into account muscle wastage which they were told I did not have but was in the medical evidence I submitted and they didn't bother to look at. What descriptor does that come under? Many thanks

I would guess that you could argue this as coming under descriptor 4, "Picking up and moving or transferring by the use of the upper body and arms.".

However, as Pete eluded to in his post, your only way forward is to show that the panel have made an error of law in not considering this evidence. Making such an appeal is complicated and often protracted, and you will need the assistance of an advisor with experience in this area.

It is also worth mentioning that unlike appealing a DWP Decision, appealing to the Upper Tribunal will not be covered by payment of the ESA Assessment rate.

Gordon

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Nothing on this board constitutes legal advice - always consult a professional about specific problems
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