appeal

i've been on ib for 17years i was migrated
to esa .In dec 2010 they said i was fine till dec 2013 .in may 2011 iwas told i was
being the changeover had began i had a medical in august atos gave me zero points
i appealed this i had tribunal hearing on feb 6th tribunal refused to change anything
i had wro with me .my problem is i've had a
long term ear & balance problem as a result
of poor balance due to four operations.
i fell over and seriously injured my knee
i've needed 2 knee surgery's i need a knee replacement the only reason is my age 53.
I thought i would claim jsa even though i'm
in agony i've been told i'm not entitled to
that either because my husband works .
i need to appeal to ut even though
i'm expected to attend jcp every 2 weeks
i'm not getting any money so unfair.
sorry if this post is to long

thanks gordon i've got welfare rights on to it.

As you are intending to appeal to the Upper Tribunal, unfortunately you cannot claim ESA at the assessment rate pending leave to appeal. Even if leave is granted, the assessment rate is still not payable until a decision is made by the UT.

I can fully sympathise with your predicament because when an appeal is lodged with the UT, the appeals process is still in progress. In my opinion, the appeal process is not exhausted until the appeal can be taken no further which may in theory be to the Supreme Court, or beyond to the European Court of Justice or the European Court of Human Rights.

In my view, there is nothing preventing a claimant lodging an appeal with the UT, and if the DWP refuse payment at the assessment rate to ask for a formal decision on the reason for non-payment. In these circumstances the non-payment entitlement decision could also be appealed to the first-tier tribunal, to run concurrently with an appeal to the UT.

The DWP may argue that the refusal to pay ESA at the assessment rate is an administrative (procedural) decision which does not carry the right of appeal. However, this is not necessarily correct, because if the appeal before the UT is set aside and referred back to be heard by a new tribunal, you would then be entitled to ESA at the assessment rate because the first tribunal would be declared null and void. Therefore, in these circumstances the DWP would also be duty bound to pay assessment rate ESA continuously from the date of the ESA decision maker's original decision, up until the newly reconstituted tribunal make a decision on your entitlement.

If an appellant finds themselves in the situation as described, I would insist that payment at the assessment rate continues without interruption, as the appeal process has not been exhausted at least until such time that leave to appeal has been refused by an UT judge, which in itself can also be challenged by way of a judicial review.

Thank you for getting back to me