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E.S.A. Tribunal - outcome

  • originaldave
13 years 4 months ago #36189 by originaldave
Replied by originaldave on topic Re:E.S.A. Tribunal - outcome
M.E Sufferrer wrote:

The main part of my employment tribunal claim was for my company failing to make reasonable adjustments to aid my return to work.

As the report from the specialist said that there were NO reasonable adjustments they could have made due to my ME being so severe, I had to drop that aspect of the case. My remaining case for constructive dismissal was settled out of court just last week.


shame it was out of court settlement, as a court decsion might be of use

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13 years 4 months ago #36203 by Gordon
Replied by Gordon on topic Re:E.S.A. Tribunal - outcome
M.E Sufferrer

You don't say when the original decision that you appealed was made, if it was six months or more, you should be able to apply for ESA again.

If you decide to appeal to the Upper Tribunal then you must to seek face to face support from an appropriate advisor, as they will be arguing points of law. You also need to be aware that it is possible that you will not receive the ESA assessment rate as you did when appealling to to Lower Tribunal.

ME/CFS is classed as a fluctuating illness, and there are additional rules that a tribunal need to take into account when making a decision, if these were ignored, then this could be considered a failure to apply the law correctly.

If you are not eligible to re-claim ESA then your choices are to become economically dormant or to claim JSA. With regard to the latter, the DWP has declared you fit, you might as well claim. :)

Hope this helps

Gordon

Nothing on this board constitutes legal advice - always consult a professional about specific problems

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  • M.E Sufferrer
  • Topic Author
13 years 4 months ago #36231 by M.E Sufferrer
Replied by M.E Sufferrer on topic Re:E.S.A. Tribunal - outcome
Hi Gordon,

Thank you for your reply.

I have requested a statement of reasons regarding the tribunal hearing and guess I will have to wait to see what it says.

Regarding the additional rules that need to be applied for someone with a fluctuating illness, is there anywhere where I can read up on these, so that I can check to see if they were applied to me?

The original decision was made in March but I was told on the telephone today that I can not re-apply unless my M.E. is worse than when I applied orginally and that I have medical proof of that.

I know absolutely nothing about JSA. Will I be expected to be looking for full-time work? Also, will any consideration be allowed for the fact that I DO have ME and therefore I am very limited with the sort of work I could be expected to do?

Debbie

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  • Survivor
13 years 4 months ago #36232 by Survivor
Replied by Survivor on topic Re:E.S.A. Tribunal - outcome
See this explanation of how soon you can reapply for ESA.

www.benefitsandwork.co.uk/news/members-o...ter-losing-an-appeal

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13 years 4 months ago #36256 by Gordon
Replied by Gordon on topic Re:E.S.A. Tribunal - outcome
Debbie

I need to be very cautious in answering your questions. No one on this forum is qualified to give you the advice you need in order for you to make an informed decision. You MUST seek face to face advise from an appropriate advisor. especially if you are considering an appeal to the Upper Tribunal.

Any comments you receive on the forums is based on the individuals understanding of the relevant benefits and procedures, which may or may not be accurate.

I am awaiting my own appeal for ESA as a sufferer of ME/CFS, so I can empathise with your situation.

Section 30 and specifically 30(2)(b) of the The Employment and Support Allowance Regulations 2008 covers repeat claims. Basically after six months have elapsed from the original decision that you did not have Limited Capability for Work you are entitled to make a repeat application.

I sounds like the DWP are trying to take it from the date of your appeal, however, I do not believe this to be correct.

There are a number of references that may or may not be relevant to your case.

The Employment and Support Allowance Regulations 2008. PART 5 LIMITED CAPABILITY FOR WORK. 27. Claimant to be treated as having limited capability for work throughout a day.

In terms of case law CIB/6244/1997 would be expected to be relevant, however, its applicability may be affected bu what was presented to the Lower Tribunal.

Given your original decision was in March then JSA should not be a consideration, my reference to it was that since they had found you fit to work you might as well claim the benefit associated.

Hope this helps but please get advice.

Gordon

Nothing on this board constitutes legal advice - always consult a professional about specific problems

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  • M.E Sufferrer
  • Topic Author
13 years 4 months ago #36380 by M.E Sufferrer
Replied by M.E Sufferrer on topic Re:E.S.A. Tribunal - outcome
Thanks for the replies.

I have spoken to a CAB advisor who deals solely with ESA appeals.

She and I both feel that it is just not realistic for me to go ahead with an application for JSA due to the fact that I simply am not able to work the minimum 24 hrs that would be required.

I have already requested the statement of reasons following the tribunals decision with a view to appealing the decision.

I thought I had read on this site that unlike when appealing in the first stage if a person decides to appeal a tribunal decision, that they will not remain on the basic ESA level payment of £65 per wk. However, the CAB have stated that this is not the case, and as long as I have started the appeal process by asking for the statement, then I AM entitled to stay on the basic award at least until that process is completed.

Can anyone confirm this?

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