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Appeal Tribunal Set Aside
- Gordon
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12 years 9 months ago #90226 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Re:Appeal Tribunal Set Aside
fedup90 wrote:
A Set Aside means that a new Tribunal hearing has to be convened, so in principle they would be put back onto the ESA Assessment rate, providing their ESA was not time limited by the 12 month rule.
However, there has to be a reason for the set aside and there are time limits for when this can be requested.
Does she have any reason for requesting a Set Aside?
Gordon
It sounds like they appealed a Fit for Work Decision.The claimant has had her benefits stopped and has not put in a new claim since she lost the appeal.
A Set Aside means that a new Tribunal hearing has to be convened, so in principle they would be put back onto the ESA Assessment rate, providing their ESA was not time limited by the 12 month rule.
However, there has to be a reason for the set aside and there are time limits for when this can be requested.
Does she have any reason for requesting a Set Aside?
Gordon
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- Jim Allison BSc, Inst LE, MBIM; MA (Consumer Protection & Social Welfare Law)
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12 years 9 months ago - 12 years 9 months ago #90227 by Jim Allison BSc, Inst LE, MBIM; MA (Consumer Protection & Social Welfare Law)
PLEASE READ THE SPOTLIGHTS AREA OF THE FORUM REGULARLY, OTHERWISE YOU MAY MISS OUT ON IMPORTANT INFORMATION. Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Jim Allison BSc, Inst LE, MBIM; MA (Consumer Protection & Social Welfare Law) on topic Re:Appeal Tribunal Set Aside
fedup90 wrote:
If a Tribunal decision is 'set aside' then that decision is null and void, so the appellant would be
in the same position as they were prior to the Tribunal's decision.
Please note as I've been retired since 2005, I do not deal with ESA queries.
However, my comments apply to all Social Security Appeal Tribunals.
A Tribunal has power to set aside a decision which disposes of
proceedings, or part of such a decision, and re-make the decision or the relevant part of
it, if:
• the Tribunal considers that it is in the interests of justice to do so; and
• one or more of the conditions below are satisfied.
The conditions are:
• a document relating to the proceedings was not sent to, or was not received at an
appropriate time by, a party or a party?s representative;
• a document relating to the proceedings was not sent to the Tribunal at an
appropriate time;
• a party, or a party?s representative, was not present at a hearing related to the
proceedings; or
• there has been some other procedural irregularity in the proceedings.
An application to set aside must be made in writing within 28 days of the day the
decision in question was sent.
If a lost Tribunal Appeal is set aside would the claimant be put back in the ESA Support Group until the appeal is heard again by a Tribunal?
If a Tribunal decision is 'set aside' then that decision is null and void, so the appellant would be
in the same position as they were prior to the Tribunal's decision.
Please note as I've been retired since 2005, I do not deal with ESA queries.
However, my comments apply to all Social Security Appeal Tribunals.
A Tribunal has power to set aside a decision which disposes of
proceedings, or part of such a decision, and re-make the decision or the relevant part of
it, if:
• the Tribunal considers that it is in the interests of justice to do so; and
• one or more of the conditions below are satisfied.
The conditions are:
• a document relating to the proceedings was not sent to, or was not received at an
appropriate time by, a party or a party?s representative;
• a document relating to the proceedings was not sent to the Tribunal at an
appropriate time;
• a party, or a party?s representative, was not present at a hearing related to the
proceedings; or
• there has been some other procedural irregularity in the proceedings.
An application to set aside must be made in writing within 28 days of the day the
decision in question was sent.
PLEASE READ THE SPOTLIGHTS AREA OF THE FORUM REGULARLY, OTHERWISE YOU MAY MISS OUT ON IMPORTANT INFORMATION. Nothing on this board constitutes legal advice - always consult a professional about specific problems
Last edit: 12 years 9 months ago by Jim Allison BSc, Inst LE, MBIM; MA (Consumer Protection & Social Welfare Law). Reason: Added conditions for 'set aside'
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- fedup90
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12 years 9 months ago #90229 by fedup90
Replied by fedup90 on topic Re:Appeal Tribunal Set Aside
So should someone who is waiting to hear if their appeal has been set aside wait until they know if this is indeed the case before putting in a new claim for ESA or going on Jobseekers?
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- Gordon
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12 years 9 months ago #90232 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Re:Appeal Tribunal Set Aside
fedup90 wrote:
Have they requested a Set Aside? If so, has it been granted?
Regarding a new claim, assuming that more than six months have passed since the Decision they appealed and their GP is prepared to issue a new Fit Note, then they can make a new claim for ESA without problem.
They need to aware that a Decision on this new claim may limit any back payments they might receive, assuming they have received a Set Aside Decision on their original appeal.
Gordon
Forgive me, but I am getting confused.So should someone who is waiting to hear if their appeal has been set aside wait until they know if this is indeed the case before putting in a new claim for ESA or going on Jobseekers?
Have they requested a Set Aside? If so, has it been granted?
Regarding a new claim, assuming that more than six months have passed since the Decision they appealed and their GP is prepared to issue a new Fit Note, then they can make a new claim for ESA without problem.
They need to aware that a Decision on this new claim may limit any back payments they might receive, assuming they have received a Set Aside Decision on their original appeal.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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- Jim Allison BSc, Inst LE, MBIM; MA (Consumer Protection & Social Welfare Law)
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12 years 9 months ago #90235 by Jim Allison BSc, Inst LE, MBIM; MA (Consumer Protection & Social Welfare Law)
PLEASE READ THE SPOTLIGHTS AREA OF THE FORUM REGULARLY, OTHERWISE YOU MAY MISS OUT ON IMPORTANT INFORMATION. Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Jim Allison BSc, Inst LE, MBIM; MA (Consumer Protection & Social Welfare Law) on topic Re:Appeal Tribunal Set Aside
A 'set aside' can only be sought if the Tribunal has made a procedural error. It cannot be sought just because the appellant isn't happy with the decision.
The original poster needs to ask for a statement of reasons for the Tribunals decision, which will identify if the decision can be 'set aside' or if the appellant has grounds to appeal to the Upper Tribunal.
As moderators, not privy to the appellants case bundle, we cannot advise on these matters.
The appellant needs 'face to face' advice from an adviser experienced in decisions of ESA Tribunals
The original poster needs to ask for a statement of reasons for the Tribunals decision, which will identify if the decision can be 'set aside' or if the appellant has grounds to appeal to the Upper Tribunal.
As moderators, not privy to the appellants case bundle, we cannot advise on these matters.
The appellant needs 'face to face' advice from an adviser experienced in decisions of ESA Tribunals
PLEASE READ THE SPOTLIGHTS AREA OF THE FORUM REGULARLY, OTHERWISE YOU MAY MISS OUT ON IMPORTANT INFORMATION. Nothing on this board constitutes legal advice - always consult a professional about specific problems
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