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Change of circumstances after losing ESA appeal
- RosaK
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4 years 11 months ago #231640 by RosaK
Change of circumstances after losing ESA appeal was created by RosaK
Does anyone know whether if someone has recently lost an appeal to be moved from the Support Group to the WRAG, but the result of this decision has had such an impact on them that their mental health has worsened significantly, this could count as a change of circumstances which may require a fresh assessment of their case?
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- Gary
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4 years 11 months ago - 4 years 11 months ago #231646 by Gary
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gary on topic Change of circumstances after losing ESA appeal
Hi RKM
When you say they lost an appeal, was this a tribunal decision or a mandatory re-consideration?
If it is an appeal then the first thing I would do is request a statement of reason from the tribunal, see members only guide 'ESA and UC appeals' remember one month time limit to either appeal or request statement of reasons.
If the claimant's circumstances has changed then they may want to make a new claim whilst appealing the original decision, but unfortunately they would now have to claim UC, they also need to gather together as much supporting evidence to help with case.
Gary
When you say they lost an appeal, was this a tribunal decision or a mandatory re-consideration?
If it is an appeal then the first thing I would do is request a statement of reason from the tribunal, see members only guide 'ESA and UC appeals' remember one month time limit to either appeal or request statement of reasons.
If the claimant's circumstances has changed then they may want to make a new claim whilst appealing the original decision, but unfortunately they would now have to claim UC, they also need to gather together as much supporting evidence to help with case.
Gary
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Last edit: 4 years 11 months ago by Gary.
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- RosaK
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4 years 11 months ago #231649 by RosaK
Replied by RosaK on topic Change of circumstances after losing ESA appeal
Hi Gary,
Thanks for the reply. Sorry I wasn't clear. This was an appeal not an MR and they were previously in the Support Group and were moved to the WRAG. The reason seems to be for not meeting the criteria for Regulation 35 - which we felt they do meet. So they are still receiving ESA, but do not feel able to engage in any work related activity. Part of the DWP's case at appeal said:
"As held in IM, the question is not whether the claimant could undertake any work-related activity, nor whether they would be sanctioned inappropriately. Being unable to carry out an activity does not mean that there would be a risk to anyone's health if the claimant is required to do so. A substantial risk to health must be identified"
which all seems pretty nonsensical. So we are unsure whether there's any way to appeal further or whether the fact their mental health has further deteriorated would count as a change of circumstances? If it did would they definitely have to move to UC if this is within a current claim, rather than a new one? Would getting PIP and SDP make any difference to this?
Thanks for the advice about requesting a statement of reasons and checking the members guide. We'll definitely do that. I'm just hoping there might be some other way to get them back to the support group as the legal stuff involved in challenging the appeal decision seems pretty daunting.
Thanks again
Thanks for the reply. Sorry I wasn't clear. This was an appeal not an MR and they were previously in the Support Group and were moved to the WRAG. The reason seems to be for not meeting the criteria for Regulation 35 - which we felt they do meet. So they are still receiving ESA, but do not feel able to engage in any work related activity. Part of the DWP's case at appeal said:
"As held in IM, the question is not whether the claimant could undertake any work-related activity, nor whether they would be sanctioned inappropriately. Being unable to carry out an activity does not mean that there would be a risk to anyone's health if the claimant is required to do so. A substantial risk to health must be identified"
which all seems pretty nonsensical. So we are unsure whether there's any way to appeal further or whether the fact their mental health has further deteriorated would count as a change of circumstances? If it did would they definitely have to move to UC if this is within a current claim, rather than a new one? Would getting PIP and SDP make any difference to this?
Thanks for the advice about requesting a statement of reasons and checking the members guide. We'll definitely do that. I'm just hoping there might be some other way to get them back to the support group as the legal stuff involved in challenging the appeal decision seems pretty daunting.
Thanks again
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- Gary
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4 years 11 months ago #231652 by Gary
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gary on topic Change of circumstances after losing ESA appeal
Hi RKM
I am not aware of any other way apart from appealing to the Upper Tier Tribunal (UTT) on points of law.
I know it seems daunting, but if you follow the guides the process is quite simple, remember it's based on points of law and not that you object the out come of the tribunal decision. If you are successful then usually it will go back to the First-tier Tribunal (FTT), but not always. The UTT may give directions to the new tribunal to make sure the error of law is not repeated.
You have to request a statement of reason within one month of the decision letter date, once you get your statement of reason you need to check for any errors in points of law, check out our Member Only Guides 'ESA and UC appeals'
Gary
I am not aware of any other way apart from appealing to the Upper Tier Tribunal (UTT) on points of law.
I know it seems daunting, but if you follow the guides the process is quite simple, remember it's based on points of law and not that you object the out come of the tribunal decision. If you are successful then usually it will go back to the First-tier Tribunal (FTT), but not always. The UTT may give directions to the new tribunal to make sure the error of law is not repeated.
You have to request a statement of reason within one month of the decision letter date, once you get your statement of reason you need to check for any errors in points of law, check out our Member Only Guides 'ESA and UC appeals'
Gary
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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