Esa Tribunal Failure

Afternoon, four weeks ago I won a Tribunal for PIP after the DWP said I couldn't have any PIP. I was awarded 9 points for Daily living, and 20 points for Mobility!!! But today i had my ESA appeal and they said I scored no points.....don't know what to do now as i cant work!!! Help x

Hi,

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Firstly, congratulation on winning your PIP Appeal !!!

If by "ESA Appeal" you mean a Tribunal Hearing, and not a decision made by The DWP as a result of you requesting a Mandatory Reconsideration (MR) of the adverse ESA fit for work decision, your options with ESA are limited.

Can you please clarify whether or not this "ESA Appeal" was an MR with The DWP, or a Hearing with The Tribunal ?

We can then tailor our response to your situation.

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bro58

Hi,

O.K.,

I have just noticed the title of your topic : "Esa Tribunal Failure", so I will assume that the decision was as the result of a Tribunal Hearing.

In that case, your options are limited.

If you think that the First Tier Tribunal (FTT) have made an : Error of Law in coming to this adverse decision, you can start proceedings to seek leave to appeal to The Upper Tier Tribunal. (UTT)

This would involve you requesting a : Statement of Reasons from The FTT within one month of the date of the Decision Notice that they may have given you at the end of the hearing, or that you should receive in the post over the coming days.

You cannot simply appeal to The UTT because you do not agree with The FTT decision, they would had to have "erred in law" in coming to the decision :

“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.

See also : Appealing to The Upper Tier, DR UK Factsheet

Even if you were allowed to appeal to The UTT, you would not receive any ESA payments as a result of this whilst the process was ongoing.

You could make a fresh claim for ESA, whether you appeal to The UTT or not.

However, since 30/03/15, fresh "REPEAT" ESA claims can only be made if the claimant can show that they now suffer from different medical conditions or a deterioration in their medical conditions which mean that they may now qualify for The WRAG and/or The SG.

It would be advisable in this situation to obtain a fresh fit note from your G.P. specifying the different medical condition or the deterioration in your existing conditions. :

See : ESA Claims Guides

www.gov.uk/employment-support-allowance/overview

Even though there is nothing to stop you making a fresh ESA Claim, unless you can show that you should now score the minimum requisite 15 points for entry to The WRAG, they may not allow your fresh claim.

Another option of course would be to sign on for JSA where they would still have to take your limitations unto account.

You should be aware that if you are allowed to appeal to The UTT, and are succesful that a fresh ESA or JSA claim may limit any positive decision made by The UTT/FTT until the date that you received a decision on your fresh ESA claim or the date that you claimed JSA.

To be clear, they cannot stop you making a fresh ESA claim, it is whether or not you will receive any ESA payments as a result of the fresh claim that is at issue !

bro58

bro58, can someone receive hardship payments whilst going through the appeal process?

From what you've said, a claimant may not be allowed to make a "Repeat" ESA claim if they can't point to a new medical condition or deterioration in the ones already mentioned in the first claim and even if they can, a negative or incorrect decision would need to be challenged by a separate appeal (and they may not be allowed to make a further "Repeat" claim whilst that's going on), whereas if they don't make a "Repeat" claim, the tribunal decision in respect of the original claim would apply until such time as the DWP decide to re-assess the claimant.

They may also not be able to actively seek work because of their health problems, so could perhaps be accused of fraud by claiming JSA and they may not be able to attend the jobcentre or comply with the conditions it might place on them anyway.

So if they can't make a "Repeat" claim for ESA or a claim for JSA, they'd be in a rather impossible position whilst appealing, unless they can claim hardship payments.