granted by upper tribuneral

Hi,l have posted before,l was over a yr ago disallowed ESA,l appealed with distance legal help,my first tribuneral was disallowed,I've now been granted permission to appeal to upper tribuneral on the grounds of error in law,basicly the tribuneral never looked into what work ect l could do based on the case of Charlton,in my granted permission letter it asked if my representative would as if l would want first tribunerals decision but aside or go with upper tribunerals suggestion,which my rep dident ask me and has gone for a re tribuneral,since loosing my ESA my suppression has gone far worse l have anxiety and panic attacks which was the condition based on reclaim for ESA,my second claim for ESA has requested a medical and with support from my gp l have been granted a home visit,my problem is my now anxiety and stress incontinace,my adviser on first claim says it will hinder my case if l don't go to the new tribuneral,I've told her of my anxiety depression,I'm confused surely if I'mto stressed ect and need a home visit would it not go against me if l attend court,which l ddon't feel l can,l feel sick and panicy on going to see gp for fit notes,I'm so upset,its very difficult in my area to acquire in person help due to so many needing support,what can l do,thankyou

Hi neal,

I think the lack of response to your query is due to the fact that it is impossible for us to know why your adviser acted as he did. The only thing I can suggest is that you speak to this person and ask the reason for his decision and what you should do next.

I no longer advise on ESA, as I was on long term sick leave when it was introduced, and I just found it impossible to catch up with the reams of new legislation and statutory instruments.

It also appears that your representative hasn't kept you up to date with your First tier Tribunal, nor your Upper Tribunal. You really need to speak to your representative because I'm having difficulty understanding what you're asking. Hopefully, one or more of our moderators with expertise in ESA will reply.

I'm not sure if you're aware but if you've been examined by ATOS in the past, then they are no longer doing Work Capability Assessments, until another company takes over from them. Not sure if this will effect your scheduled home visit.

See this News item All repeat WCA medicals to be stopped

neal76 wrote: Hi,l have posted before,l was over a yr ago disallowed ESA,l appealed with distance legal help,my first tribuneral was disallowed,I've now been granted permission to appeal to upper tribuneral on the grounds of error in law,basicly the tribuneral never looked into what work ect l could do based on the case of Charlton,in my granted permission letter it asked if my representative would as if l would want first tribunerals decision but aside or go with upper tribunerals suggestion,which my rep dident ask me and has gone for a re tribuneral,since loosing my ESA my suppression has gone far worse l have anxiety and panic attacks which was the condition based on reclaim for ESA,my second claim for ESA has requested a medical and with support from my gp l have been granted a home visit,my problem is my now anxiety and stress incontinace,my adviser on first claim says it will hinder my case if l don't go to the new tribuneral,I've told her of my anxiety depression,I'm confused surely if I'mto stressed ect and need a home visit would it not go against me if l attend court,which l ddon't feel l can,l feel sick and panicy on going to see gp for fit notes,I'm so upset,its very difficult in my area to acquire in person help due to so many needing support,what can l do,thankyou

Hi n76,

I think that I can see where you are coming from here.

In that, you have been granted an ATOS Home Assessment with your current ESA assessment due to your limitations in traveling and leaving your home to attend an ATOS Assessment Center.

You have been advised that you have a greater chance of success by attending an oral hearing regarding your previous ESA claim.

Attendance of an oral hearing by the appellant does result in a far greater chance of success than none attendance and a paper hearing.

Therefore, I think that you are asking, will the fact that you have managed to attend the oral hearing be somewhat contradictory to the fact that you have been granted a Home Assessment by ATOS.

You have little option here, it is either an oral hearing, or a paper one.

If you do manage to attend an oral hearing, the fact that you are obviously distressed may go in your favour.

You could write a letter to The Tribunal beforehand informing them of the difficulties that you face, and go into more detail if you manage to attend.

I am afraid that you must weigh up the odds, and make a decision on whether to attend or request a paper hearing.

It is a fact that paper hearings have a lesser rate of success, but it is possible to succeed, if your case is laid down strongly enough on paper.

It's only a decision that you can make.

bro58

Thank you for your replays,yes bro 58 you have got what l meant thank you,l had read that atoms had stopped for the moment doing further assessments but dident think it included myself,if they don't do secondery assessments l can't see them doing home visits but will post if they do,l will e mail my representative for her reasons on my case being put aside,l did ask what would likely be the upper tribunals suggestion but no answer,she did not consult myself but I'm told has gone ahead asking for the first tribunals decision to be put aside, it is all confusing ,what happens with my ESA path I'm on now if the re tribunal find in my favour,its all a complicated affair,but feel even tho it makes me I'll l need to carry on,thank you

neal76 wrote: Thank you for your replays,yes bro 58 you have got what l meant thank you,l had read that atoms had stopped for the moment doing further assessments but dident think it included myself,if they don't do secondery assessments l can't see them doing home visits but will post if they do,l will e mail my representative for her reasons on my case being put aside,l did ask what would likely be the upper tribunals suggestion but no answer,she did not consult myself but I'm told has gone ahead asking for the first tribunals decision to be put aside, it is all confusing ,what happens with my ESA path I'm on now if the re tribunal find in my favour,its all a complicated affair,but feel even tho it makes me I'll l need to carry on,thank you

Hi n76,

As you have already been referred to ATOS, and the assessment process has begun, the odds are that the Home Assessment will still take place.

However, there are no certainties is these crazy times.

Reading back on your previous posts it seems that this Home Assessment is as the result of a fresh claim for ESA.

Therefore, any decision made as a result of your ongoing appeal will only run until the date of the fresh decision made as a result of the impending Home Assessment.

This could work for or against you. If your appeal is successful, and the result of your Home Assessment is unsuccessful, the favourable appeal decision will only run until the date of the more recent adverse decision.

On the other hand, if your appeal fails, and you are placed into The WRAG or SG as a result of the Home Assessment, this newer decision will supercede (take over from) the Tribunal adverse decision from the date of the more recent decision.

If you fear having to attend an Upper Tier Tribunal (UTT) in person, this is not likely to happen.

Appellants seldom have to appear at UTT Hearings.

Generally , once permission is granted to appeal to The UTT, they will either leave the decision unchanged, set aside the decision and return it to The First Tier Tribunal (FTT) for a fresh hearing, sometimes with directions as to how The FTT should apply the law, or they may set the adverse decision aside and make a ruling on it themselves.

Obviously, if The UTT return it to The FTT for a fresh hearing, you then have the dilemma of choosing between an oral hearing or a paper hearing.

Have a look at the following :

Appealing to The Upper Tier, DR UK Factsheet

&

DRUK Factsheet - Appeals Hearings and How to Prepare for them.

Hope this explains it for you.

bro58