No ESA50 at WCA

Thanks bro58, that's interesting.

He wouldn't be appealing against the 2012 decision where he was awarded 15+ points and put in the WRAG, only the recent one where he was given 0 points but as the UTT have found that not "scoring" against the Descriptors when making the decision makes it legally invalid, then perhaps the tribunal will not be impressed when the DWP have to admit they didn't "score" him in 2012 and can't explain why they awarded WRAG then but "scored" him 0 points now. I believe on review (which the recent assessment was) the burden of proof is on the DM to show that the claimant is no longer entitled (i.e. his condition has improved), so that may assist him as well.

I guess he could seek judicial review of the 2012 decision, as he's only just discovered that he wasn't "scored" and JR can be sought within three months of becoming aware of the unlawful actions but I don't really think it would be of much use to him and he's probably better off concentrating on the appeal.

My friend's trying to find someone to represent him at appeal but he's not having much luck.

He went to the Welfare Advice service in his area for help with his MR and they were very unhelpful. Before he even got a chance to say much they said that they didn't rate his chances based on what the report said, when the whole point of the MR/appeal is that the DM's report is based on the HCP's report, which is in error. They also said that the tribunal judges expect you to show what you're doing to get better and to be seeing a psychiatrist or counsellor but nothing I've read suggests that either of these are needed to qualify for ESA.

More recently he's spoken to a bloke who was recommended as having never lost an appeal. He said that it was "nonsense" that the DM is meant to phone you before making a negative decision on MR, which contradicts everything I've read (although it appears in practice DMs are neglecting to do this in order to speed up the process). He's also said that my friend put too much information in his MR request and as a result it would make it hard for him to represent him. I have no idea what he means, as I went over it with my friend before he submitted it and I was happy he'd pared it down to just the relevant and necessary points and presented it clearly.

I wonder if anyone can recommend a competent representative in the Liverpool area? My friend is prepared to pay someone if he can afford their fees but I think it would be better to go with someone who's prepared to work on a no-win, no-fee or Conditional Fee arrangement, as otherwise the representative will get paid no matter what and is not invested in the outcome, so he could just be paying someone who's happy to take his money and be of little use.

I'm wondering how important legal points might be at appeal? If my friend can show that there were breaches of law but fails to show that he should have been awarded sufficient points, what would happen?

For example, under Burden of Proof on this page summarising UTT decisions www.disabilityrightsuk.org/how-we-can-he...n-making-and-appeals it suggest that R(S)/3/90 established that at the review stage (which my friend's recent re-assessment was) the burden is on the DWP to show that the claimant is no longer entitled (which CSDLA/637/2006 seems to suggest means showing that his condition has improved compared to when he was previously entitled).

I can't see that they've done that in this case, as there was no ESA50 and no other evidence to consider which might support such a conclusion, so if he could satisfy the tribunal on this point, would they be obliged to overturn the decision?

CSDLA/637/2006 and CSDLA/822/2006 also seem to suggest that where the DWP has failed to record why the claimant was entitled at the previous assessment (i.e. failed to score against the descriptors), as in my friend's case, it will be especially hard to persuade the tribunal that there has been a relevant change of circumstances to justify withdrawing entitlement.

David Jones wrote: My friend's trying to find someone to represent him at appeal but he's not having much luck.

He went to the Welfare Advice service in his area for help with his MR and they were very unhelpful. Before he even got a chance to say much they said that they didn't rate his chances based on what the report said, when the whole point of the MR/appeal is that the DM's report is based on the HCP's report, which is in error. They also said that the tribunal judges expect you to show what you're doing to get better and to be seeing a psychiatrist or counsellor but nothing I've read suggests that either of these are needed to qualify for ESA.

More recently he's spoken to a bloke who was recommended as having never lost an appeal. He said that it was "nonsense" that the DM is meant to phone you before making a negative decision on MR, which contradicts everything I've read (although it appears in practice DMs are neglecting to do this in order to speed up the process). He's also said that my friend put too much information in his MR request and as a result it would make it hard for him to represent him. I have no idea what he means, as I went over it with my friend before he submitted it and I was happy he'd pared it down to just the relevant and necessary points and presented it clearly.

I wonder if anyone can recommend a competent representative in the Liverpool area? My friend is prepared to pay someone if he can afford their fees but I think it would be better to go with someone who's prepared to work on a no-win, no-fee or Conditional Fee arrangement, as otherwise the representative will get paid no matter what and is not invested in the outcome, so he could just be paying someone who's happy to take his money and be of little use.

I'm wondering how important legal points might be at appeal? If my friend can show that there were breaches of law but fails to show that he should have been awarded sufficient points, what would happen?

For example, under Burden of Proof on this page summarising UTT decisions www.disabilityrightsuk.org/how-we-can-he...n-making-and-appeals it suggest that R(S)/3/90 established that at the review stage (which my friend's recent re-assessment was) the burden is on the DWP to show that the claimant is no longer entitled (which CSDLA/637/2006 seems to suggest means showing that his condition has improved compared to when he was previously entitled).

I can't see that they've done that in this case, as there was no ESA50 and no other evidence to consider which might support such a conclusion, so if he could satisfy the tribunal on this point, would they be obliged to overturn the decision?

CSDLA/637/2006 and CSDLA/822/2006 also seem to suggest that where the DWP has failed to record why the claimant was entitled at the previous assessment (i.e. failed to score against the descriptors), as in my friend's case, it will be especially hard to persuade the tribunal that there has been a relevant change of circumstances to justify withdrawing entitlement.

Hi DJ,

I am afraid that we do not make personal recommendations, even if we wanted to, we do not have any form of database or resources to refer to.

You will have to do a search on the internet to find a Solicitors with a Welfare Benefits Dept or a Welfare Advice Agency that are willing to help.

Here is what came up when I put Welfare > Liverpool > Benefits and Allowances into The Law Society Search Engine.

solicitors.lawsociety.org.uk/search/resu...alIssue=LIBEN&Page=1

I cannot personally vouch for any of the listed Solicitors.

See also : How to find an adviser.

Failing any of the above put Welfare Rights/Advice with your Postcode into Google.

bro58

Thanks bro58, that's fair enough. I'll pass on the link to my friend.

I'd appreciate any advice anyone can offer on what importance should be attached to any legal points by the tribunal, as well as feedback on what the Welfare Rights advisor and this other bloke said.

Thanks Gordon.

Whilst there may generally not be an assumption of entitlement, those UTT rulings on burden of proof suggest to me that this might not be true on re-assessment, when it is for the DWP to show that there has been a relevant change of circumstances to justify withdrawing entitlement. Hopefully my friend can find someone legally qualified to advise him about that though, as I wouldn't want him to rely on my interpretation of the case law.

Saying that if the assessment report doesn't support the award being appealed for can make it hard to succeed with an argument that the decision was unjustified and unlawful seems to be letting the DWP off too easily, as the government only contracted out these assessments so that they can claim that the DWP just acts on advice from the contractor, whilst the contractor knows that they're expected to dismiss as many claims as possible, regardless of the evidence. At the end of the day, the decision is still legally the DWP's responsibility, so if the assessment is obviously flawed, or evidence such as the ESA50 is missing, then I don't see how the DM can shrink responsibility for the decision by pointing to the assessment report. I can't imagine many decisions being made to disallow a claim when the assessment report recommends allowing it, so appeals are only likely to happen when the report does not support the claim.

Whilst I wouldn't expect the FTT to make an award when they haven't been satisfied that the claimant meets the criteria, I would expect them to reject a decision that's been made unlawfully (other than perhaps where the unlawfullness is insignificant or it's clear that the claimant could never have successfully argued that he was entitled) and order the process to be restarted.

It would seem unfortunate if breaches of the law are only considered secondary arguments, as it allows the DWP to disregard the law and UTT findings when making decisions if they think a claimant will struggle to demonstrate that they should have been awarded ESA on the evidence that the DWP had before it at the time of the decision.