still no points on appeal - what now?

holloway wrote: Thank you for the advice , the links were helpful but I am getting more confused the more i read!

My first concern is the March 30th deadline - whether to go that route or go for
1. supersession of tribunal decision
2. or make a new claim
3. or persue an error in law to upper tribunal

I was on contributary IB and would not be eligible for income ESA - is my entire contribution history now null and void if I make a new claim? what about my national insurance contributions from now on, I have 7 years to go to retirement.

Sorry for all the questions - the benefits system is a complete and total nightmare

Hi h,

It appears that you are still confused.

"1. supersession of tribunal decision"

This is not an option, you cannot request a supersession of the Tribunal Decision, which was actually, not to change the original adverse fit for work decision.

There is no ESA Award to request a review/supersession of, you are classed as being fit for work.

The only way to challenge the Tribunal decision is option :

"3. or persue an error in law to upper tribunal"

As Gordon advised you could follow option 3, and make a fresh claim for ESA, as at "option 2."

However, as more than 12 weeks will have elapsed between the date of the original fit for work decision, and you making a fresh claim, you will not have the necessary NI Contributions/Credits to be paid Contribution Based (CB) ESA.

So, even though you could make a claim for ESA, and your claim would be accepted, if you also have no entitlement to Income Related (IR) ESA, you would not receive any monies.

It would be classed as a nil rate award, and you would only receive NI Credits towards your State Pension.

It therefore looks like the only ways that you could be paid ESA once more are :

1. Successfully challenge The Tribunal decision to The UTT on an error of law.

2. Gain the requisite number of NI Contributions from employment for entitlement to CB ESA payments in the future.

3. Your personal and financial circumstances change to an extent that you pass the means test for IR ESA payments.

You could still make the fresh ESA Claim now, to gain NI Credits towards your State Pension.

bro58

Thank you for the advice.
has anyone on here any experience of going to an upper tribunal for an "error in law" - the more i read the more confused I get.
Thank you for pointing me in the right direction

holloway wrote: Thank you for the advice.
has anyone on here any experience of going to an upper tribunal for an "error in law" - the more i read the more confused I get.
Thank you for pointing me in the right direction

Hi h,

Appellants seldom have to attend a UTT hearing in person.

In the vast majority of cases, the UTT will examine your submission, and decide whether the First Tier Tribunal (FTT) have erred in law in coming to their decision.

If they decide that there has been an error of law, they seldom reverse the decision themselves.

Instead, they will send directions back to The FTT, indicating how and why an error of law has taken place.

A fresh FTT hearing would then be convened with a different panel, who will take the UTT's directions and any fresh evidence that you supply into account when making a fresh decision.

If the reconvened FTT then find in your favour, that decision will be backdated to the time of the original adverse fit for work decision.

bro58

Thank you.

My first appeal at tribunal was started and adjourned because I was asked to supply more evidence. At the second tribunal hearing the judge said that he was only required to judge whether the right DWP decision was made initially and not on the new evidence.

I find that bewildering, I supplied addition evidence, doctors notes and a letter of support from my doctor. The judge said he was basing his decision on what I said and on the evidence of the doctor - yet the doctor said I was unfit for work.

Is that a "logical fallacy" and therefore an error in law.
This is so totally confusing.....

holloway wrote: Thank you.

My first appeal at tribunal was started and adjourned because I was asked to supply more evidence. At the second tribunal hearing the judge said that he was only required to judge whether the right DWP decision was made initially and not on the new evidence.

I find that bewildering, I supplied addition evidence, doctors notes and a letter of support from my doctor. The judge said he was basing his decision on what I said and on the evidence of the doctor - yet the doctor said I was unfit for work.

Is that a "logical fallacy" and therefore an error in law.
This is so totally confusing.....

Hi h,

When a Tribunal looks at an appeal, they can only "re-look" at how you were at the actual time of the original adverse decision under appeal.

Therefore, any evidence that you have must be tied to that time.

The TS cannot take how you have been since then, or any changes in your limitations since that time.

To be placed into The WRAG you needed to show that you scored the minimum requisite points cumulatively across all/any of : The WRAG (LCW)Schedule 2 Descriptors if you can't score the 15 points, another route is via : ESA REG 29 :

ESA Reg 29 for entry to The WRAG (LCW)

PLUS Post 28/01/13 Amendment of :

(3) Paragraph (2)(b) does not apply where the risk could be reduced by a significant amount by—

(a)reasonable adjustments being made in the claimant’s workplace;

or

(b)the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.”.

From : www.legislation.gov.uk/uksi/2012/3096/regulation/3/made

For entry to The Support Group, you must fulfil any one of : The SG (LCWRA)Schedule 3 Descriptors or via : ESA Reg 35 for entry to The SG (LCWRA)

A fit note or a letter of support from your G.P. stating that you were unfit for work does not really help to show how and why you should have scored the minimum 15 points for WRAG, qualified under ESA Reg 29, fulfilled at least one of The SG descriptors or qualified under ESA Reg 35.

See also : ESA Claims Guides

If you feel that the Tribunal has erred in law in that they have failed to take into account evidence that was favourable to you, etc, you could seek leave to appeal to The UTT once you have the Statement of Reasons.

“Errors in Law” can include : Insufficient findings of fact, failure to explain why they have disregarded any evidence favourable to the appellant, failure to explain why they’ve relied on any material evidence against the appellant particularly where that evidence was put at issue by the appellant, complete mishandling of relevant evidence or applying the law incorrectly, etc.

It would not be unusual for The First Tier Tribunal to refuse your initial request to appeal to The UTT.

That being the case, you can seek leave to appeal directly to The UTT, more on this below :

Appealing to The Upper Tier, DR UK Factsheet

You might want to seek professional advice, as you can obtain Legal Aid for UTT Appeals:

Where to get advice

Or try putting Welfare Rights/Advice for your Town/Postcode into Google.

bro58