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Appeal to the Upper Tribunal
- simon
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9 years 1 month ago #131711 by simon
Appeal to the Upper Tribunal was created by simon
I had ( and won) my first appeal for ESA in Sept 2010.....6 points up to 24.
As my condition is a rare, genetic type called Spino Cerebeller Ataxia I was still put in the WRAG group.
Due to Welfare reforms all financial help stopped at the end of April 2012.
My advocate at the time from Ataxia UK was liasoning for me with the DWP.....there was a lot of to-ing and fro-ing for 8 months......getting nowhere.
I appealed for the second time and failed a second appeal in Sept 2014.....with the tribunal taking ALL points off me....reducing me to 0 points and totally fit for work.
I asked for them to set aside the verdict.....got a letter saying they are sticking by verdict (on the 29th Oct 2014)......4 letters from the DWP came on the 30th Oct 2014 getting me off ESA books.
I didn't know what to do so I saw my MP and left it with him.
2 weeks passed with no word so I studied ESA regulations 2008 (now 2013) and Equality Rights 2010.....I drafted a letter of legal points and sent it to the Courts and Tribunal Service.
They have now given me permission to appeal to the Upper Tribunal.
Its well over £10,000 in back dated money....is this all lost because the DWP have me off ESA books?
They didn't waste much time in getting what they want!
As my condition is a rare, genetic type called Spino Cerebeller Ataxia I was still put in the WRAG group.
Due to Welfare reforms all financial help stopped at the end of April 2012.
My advocate at the time from Ataxia UK was liasoning for me with the DWP.....there was a lot of to-ing and fro-ing for 8 months......getting nowhere.
I appealed for the second time and failed a second appeal in Sept 2014.....with the tribunal taking ALL points off me....reducing me to 0 points and totally fit for work.
I asked for them to set aside the verdict.....got a letter saying they are sticking by verdict (on the 29th Oct 2014)......4 letters from the DWP came on the 30th Oct 2014 getting me off ESA books.
I didn't know what to do so I saw my MP and left it with him.
2 weeks passed with no word so I studied ESA regulations 2008 (now 2013) and Equality Rights 2010.....I drafted a letter of legal points and sent it to the Courts and Tribunal Service.
They have now given me permission to appeal to the Upper Tribunal.
Its well over £10,000 in back dated money....is this all lost because the DWP have me off ESA books?
They didn't waste much time in getting what they want!
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- Gordon
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9 years 1 month ago - 9 years 1 month ago #131720 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Appeal to the Upper Tribunal
Simon
If you are appealing to the UTT in regard to the Fit for Work Decision then the fact that the DWP have closed your claim will not have an impact, but there are some caveats.
First, the ESA Regulations 2013 will not be relevant to your appeal, they only apply to Universal Credit claimants only, you will have been assessed using the ESA Regulations 2008 as amended.
As to the issues, although your appeal to the UTT has been accepted this does not mean that you have won your case, the UTT judge may still decide there has not been an Error of Law and uphold the original Decision, even if they decide to Set Aside the original Tribunal Decision it is unlikely that they will decide that you now meet the criteria for the Support Group, it is far more likely that your claim will be remitted back to the First Tier for a new hearing to be held with a direction dealing with the Error. You will then need to show once again that you met the criteria for the Support Group on the day of the original Decision being appealed.
You need to be aware that is possible that the original Tribunal made the right Decision for the wrong reasons.
Gordon
If you are appealing to the UTT in regard to the Fit for Work Decision then the fact that the DWP have closed your claim will not have an impact, but there are some caveats.
First, the ESA Regulations 2013 will not be relevant to your appeal, they only apply to Universal Credit claimants only, you will have been assessed using the ESA Regulations 2008 as amended.
As to the issues, although your appeal to the UTT has been accepted this does not mean that you have won your case, the UTT judge may still decide there has not been an Error of Law and uphold the original Decision, even if they decide to Set Aside the original Tribunal Decision it is unlikely that they will decide that you now meet the criteria for the Support Group, it is far more likely that your claim will be remitted back to the First Tier for a new hearing to be held with a direction dealing with the Error. You will then need to show once again that you met the criteria for the Support Group on the day of the original Decision being appealed.
You need to be aware that is possible that the original Tribunal made the right Decision for the wrong reasons.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Last edit: 9 years 1 month ago by Gordon.
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- simon
- Topic Author
9 years 1 month ago #131729 by simon
Replied by simon on topic Appeal to the Upper Tribunal
Thanks for the reply Gordon.,..I understand that I haven't won my appeal but from what the judgement said from a district judge that gave me permission, after I quoted some parts of ESA Regs 2008 (not 2013).
Surely though if the ESA Regs 2013 only apply to UC cases then they should be called 'Universal Credit Regs 2013'...…shall I carry on looking at the 2008 Regs and not the 2013 Regs?
If my entire case is focused on the 2008 regs.....I should be looking at these ones more rather than the 2013 ones?
Its up to me to draw the judges attention to legal points isn't it?
Surely though if the ESA Regs 2013 only apply to UC cases then they should be called 'Universal Credit Regs 2013'...…shall I carry on looking at the 2008 Regs and not the 2013 Regs?
If my entire case is focused on the 2008 regs.....I should be looking at these ones more rather than the 2013 ones?
Its up to me to draw the judges attention to legal points isn't it?
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- simon
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9 years 1 month ago #131732 by simon
Replied by simon on topic Appeal to the Upper Tribunal
The only reason I have been granted permission to appeal to the UT is because there has been an error made.
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- Gordon
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- Posts: 51101
9 years 1 month ago #131733 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Appeal to the Upper Tribunal
Simon
The ESA Regulations 2013 only apply to Universal Credit see Regulation 1(3) for the reference, so you should only refer to the 2008 version, as amended, in regard to your appeal.
Have a look at the following for an explanation of what constitutes an Error of Law
What is an Error of Law?
and the following factsheet about appeals to the UTT
www.disabilityrightsuk.org/appealing-upp...er-tribunal-decision
Gordon
The ESA Regulations 2013 only apply to Universal Credit see Regulation 1(3) for the reference, so you should only refer to the 2008 version, as amended, in regard to your appeal.
Have a look at the following for an explanation of what constitutes an Error of Law
What is an Error of Law?
and the following factsheet about appeals to the UTT
www.disabilityrightsuk.org/appealing-upp...er-tribunal-decision
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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- simon
- Topic Author
9 years 1 month ago #131735 by simon
Replied by simon on topic Appeal to the Upper Tribunal
Thanks for your help..,.I started off looking closely at the 2008 regs then I came across the 2013 regs and naturally thought I should be quoting the latest legaslature.
I'm glad you told me....I'll look at the ESA Regs 2008 now.
Thanks again.
I'm glad you told me....I'll look at the ESA Regs 2008 now.
Thanks again.
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