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Is the onus of proof on the appeal tribunal requir 10 years 3 weeks ago #26292

  • letitia
hi all can you tell me if the onus of proof required if the DLA appeal tribunal disallows your appeal ,Stating in the letter of their decision (Relevant improvement in Condition))I have confirmed COPD OSTEOPOROSIS WITH confirmed fragility fractures (hospital report)Osteoartritis in spine hands knees neck ankles ,The appeal tribunal also had hospital report from april this year confirming more degeneration in my neck and spine ,All help will be greatly appreciated as i wish to appeal their decision receipt of DLA for 11 years HRC +HRM Indefinate award,

many thanks to all Letitia

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Re:Is the onus of proof on the appeal tribunal requir 10 years 3 weeks ago #26297

Hi Letitia

Sorry to hear about your horrendous appeal experience. I would recommend that you see a welfare rights worker as soon as you receive your statement of reasons (which can take around two months).

You can’t appeal to the Upper Tribunal because you disagree with medical findings, but failing to give adequate reasons for their decision or rejecting your evidence, not properly considering all the evidence in front of them, or accepting a medical report without question may amount to an error of law.

Tribunals are allowed to make decisions, after considering all of the evidence, on the balance of probabilities, unlike criminal courts where proof beyond reasonable doubt is required. However if you had an existing award for DLA that has been terminated, the burden of proof does lie with the DWP. If the tribunal has failed to correctly discharge the burden of proof, this too could be an error of law.

An experienced advisor should be able to help you identify any potential errors of law when you get your SOR. An ‘error of law’ is defined in R(A)1/72 , a decision which dates back to 1972 but remains valid. You can find a plain English definition here .

Best of luck

Derek

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Re:Is the onus of proof on the appeal tribunal requir 10 years 3 weeks ago #26310

  • letitia
hi depresseddave ,I think you misunderstood my post ,

this part from your post

(You can’t appeal to the Upper Tribunal because you disagree with medical findings,))

I am not disagreeing with the medical findings as all my conditions have been confirmed by consultants,and all conditions are degenerateing conditions and there is no medical cure ,
what i was asking was does the appeal tribunal have to have medical evidence to prove there has been a relevant improvement in my conditions ,before they can make that assumption, As in NO 2 below ,
thanks for the link and thanks to Jim1 for posting it


The tests for an 'error of law' by a Tribunal are in an old, but still relevant Commissioners Decision.

Test for error of law

R(A)1/72 states that there is an error of law if:

1. The decision contains a false statement about the law e.g. they got the law wrong or misinterpreted it.

2. The decision made is supported by no evidence

3. The facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination in question (a perverse decision).

4. There has been a breach of natural justice, i.e. the procedure followed leads to unfairness.

5. The tribunal did not give proper findings of fact or provide adequate reasons for its decision. There must be sufficient reasons so that you can see why it reached the decision it did.

“The minimum requirement must at least be that the claimant, looking at the decision, should be able to discern on the face of it why the evidence has failed to satisfy the authority”

Hope this explains things.

Good luck.

Jim
y post

letitia

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Re:Is the onus of proof on the appeal tribunal requir 10 years 3 weeks ago #26314

Hi letitia

Sorry for not being clear. The ‘medical findings’ that I was referring to was the EMP report that you mentioned in your previous thread (lost appeal unhappy at me challenging EMP report). Medical reports can’t contain errors of law, and it is very unlikely that a Decision Notice will contain an error of law. Only the tribunals full Statement of Reasons, which you have applied for, is likely to contain errors of law.

You asked the question ‘does the appeal tribunal have to have medical evidence to prove there has been a relevant improvement in my conditions, before they can make that assumption?’

They don’t have to have ‘medical’ evidence, but they have to have some kind of evidence, medical or not, to support their decision, and this should be stated in the SOR. You are right to focus on No.2, but also consider No.5, providing adequate reasons. You really have to wait until you receive the SOR to see what reasons are provided.

The only encouragement I can offer is that when I waited two months for my SOR, I was confident that the judge would not be able to give adequate reasons for his decision in the face of the evidence in front of the tribunal, and that the SOR would contain errors of law. On receiving the SOR I felt that I was right, and the case is now in front of the Upper Tribunal, although whether it succeeds is another matter.

As you have solid medical evidence to support your claim, and I take it that no satisfactory evidence was provided at the hearing to counter it, the judge may well have an uphill task in providing adequate reasons for her decision, when she has to write the SOR.

I hope this has been helpful.

Derek

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Re:Is the onus of proof on the appeal tribunal requir 10 years 3 weeks ago #26316

  • letitia
HI Derek, thanks for the reply i understand a little bit now what you were trying to explain to me , That i will have to wait for the SOR to see how she came to the conclusion that my conditions have improved as they are all deteriating conditions that dont improve ,
one more question derek if i may be so bold on the statement of reasons from the decision maker for the DWP she states in the letter that the EMP REPORT I can walk 200 meters before having to stop due to severe pain , but looking at the rules it says severe discomfort if this not mentioned in the SOR from the appeal tribunal is it also something i can use ,as she applied the wrong test ,any help appreciated I read the rules but have problems understanding them ,many thanks ,LETITIA

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Re:Is the onus of proof on the appeal tribunal requir 10 years 3 weeks ago #26322

  • kathy1
Hi Letitia,

Sorry to hear about your lost appeal. I can really understand your frustration especially as a lot of your uphill struggle is as a result of an unsupportive EMP report.

I also appreciate what its like trying to determine why you lost your appeal and everything goes through your mind. Derek is 100% right in advising you to wait until you receive your SOR from the Legally Qualified Member. Until you receive this, you wont know if they considered severe discomfort or severe pain.

Unfortunately, its still going to be a long drawn out process because its can take up to 3 months to receive a SOR but in the meantime, you are well within your rights to re-apply for DLA and just to give you some encouragement and hope this is a brief summary of what I did and you can see that its possible to succeed with a lot of perseverance.

Awarded DLA MRC “for life” 1995, period review 2008, unsupportive EMP lost my award.
Wrote to Medical Services and complained re EMP and placed my contentions with report in writing to the tribunal well in advance of my oral hearing. When this was going on I re-applied for DLA in Nov’08 and was awarded LRC December ‘08. I appealed this decision, so at this stage I had 2 appeals going on at the same time. Went to oral hearing in April ‘09 and lost my 1st appeal, 3 months later received SOR and to be honest the SOR I received was reasonable with no error of law.

In Dec’09, attended an oral hearing for my 2nd appeal, panel decided to have me assessed by an EMP(here we go again). EMP came March’10, no surprise UNSUPPORTIVE report contained untruths and inaccuracies. I wrote to tribunal with my disputes, DWP received a copy and they passed this to Medical Services, received a reply from CMO ummmmmmmm. Went back to tribunal May’10.

From the outset I explained to the panel that I had put all I had to say about the EMP report in writing and rather that discuss it any further at the hearing I was leaving it in their hands to decide if it was unfit for purpose. At the hearing, I just answered the questions put to me, I explained how I am affected and what help I benefit from. During the hearing, some of the questions related to what I had stated in my first appeal so even while I was sitting at the oral hearing I knew that not only did the panel know I had previously lost an appeal, but I knew by their questioning that they were also aware of details contained in my first case because some of the things discussed were not even included in my second application so they knew everything.

I was given my decision on the day, and I was awarded LRC/HRM. Because it took so long, my case had come up for review as the LRC was only awarded for 18 months so prior to going to the hearing I had completed the renewal. A couple of weeks after my appeal, I received my review decision from DWP and they awarded me HRM/MRC for 2 years. One other point, when I completed my renewal, I amended the consent page so that no previous EMP report could be used to determine my entitlement.

I know this may seem all well and good because mine has been sorted, but I hope that this at least gives you some confidence to carry on. It will take a lot out of you, but if you believe you are entitled, then fight.

Kathy x x x

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