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First time at an ESA appeal - help! (please :) )
- AnneR
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10 years 5 months ago - 10 years 5 months ago #113956 by AnneR
First time at an ESA appeal - help! (please :) ) was created by AnneR
Hello everyone
I'm going to be representing a very ill man at his ESA first tier tribunal appeal this Thursday. I have a legal background but am doing this in a voluntary capacity and have never conducted any kind of benefits appeal before. I'd be extremely grateful for some pointers (I only got the case late last week so there was no time to refer it to someone more experienced).
I'd particularly appreciate advice on the following:
1. My client received 0 points at his ATOS assessment despite very strong medical evidence that he is very ill and couldn't work. Part of the problem is that he has a fluctuating condition. My planned approach is to prepare written submissions setting out the descriptors he meets on the grounds that he cannot undertake the activities 'reliably, repeatedly and safely', citing appropriate medical evidence. I will also make the case in the written submission that he should be in the support group on the grounds that working would present a significant danger to his health.
-Does this approach seem sensible? Is there anything else you would recommend I do?
-Is it OK to submit written submissions on the day of the tribunal or should I try to get them there the day before?
-Do the submissions need to be written in my clients words and signed by him, or can I prepare them and sign them on the basis that they are true to the best of my knowledge and belief? Or do they need to be signed at all?
-Should I mention case law at this stage? Someone suggested that I might want to hold back relevant cases at this stage in case we need to appeal to the upper tribunal.
2. Can anyone give advice about arguing that someone with a fluctuating condition - who some days can do very gentle exercise but on others is completely bed-ridden - should be in the support group? If it helps, my client has a very recognisable fatal condition which he is managing with medication.
Many thanks in advance, and also thank you to BenefitsandWork for this resource - it's been invaluable so far!
Anne
I'm going to be representing a very ill man at his ESA first tier tribunal appeal this Thursday. I have a legal background but am doing this in a voluntary capacity and have never conducted any kind of benefits appeal before. I'd be extremely grateful for some pointers (I only got the case late last week so there was no time to refer it to someone more experienced).
I'd particularly appreciate advice on the following:
1. My client received 0 points at his ATOS assessment despite very strong medical evidence that he is very ill and couldn't work. Part of the problem is that he has a fluctuating condition. My planned approach is to prepare written submissions setting out the descriptors he meets on the grounds that he cannot undertake the activities 'reliably, repeatedly and safely', citing appropriate medical evidence. I will also make the case in the written submission that he should be in the support group on the grounds that working would present a significant danger to his health.
-Does this approach seem sensible? Is there anything else you would recommend I do?
-Is it OK to submit written submissions on the day of the tribunal or should I try to get them there the day before?
-Do the submissions need to be written in my clients words and signed by him, or can I prepare them and sign them on the basis that they are true to the best of my knowledge and belief? Or do they need to be signed at all?
-Should I mention case law at this stage? Someone suggested that I might want to hold back relevant cases at this stage in case we need to appeal to the upper tribunal.
2. Can anyone give advice about arguing that someone with a fluctuating condition - who some days can do very gentle exercise but on others is completely bed-ridden - should be in the support group? If it helps, my client has a very recognisable fatal condition which he is managing with medication.
Many thanks in advance, and also thank you to BenefitsandWork for this resource - it's been invaluable so far!
Anne
Last edit: 10 years 5 months ago by Gordon.
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- Gordon
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10 years 5 months ago #113962 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic First time at an ESA appeal - help! (please :) )
AnneR
I will try and answer your questions but we cannot provide specific advice without having a detailed knowledge of a claimants case, which is not possible in the forum.
Tribunal cases are won by the claimant showing that they meet the criteria for the benefit, so your approach makes sense, however, there are two Exceptional Circumstances Regulations, Reg. 29 applies to work and the WRAG and Reg. 35 applies to Work Related Activity and the Support Group, so you will not get a SG award by showing they are in danger by working, only WRAG.
Ideally all submissions and evidence should be with the Tribunal Service at least two weeks before the hearing so that they can be copied and circulated to all parties, it is possible to include additional papers on the day, but the more pages the more likely it is for the case to be adjourned, so as a general rule stick to one page and two at the very most, and provide five copies.
It is far better that a submission is written in the claimants words, however, it is acceptable to write on their behalf if their is good reason to do so, for example; the claimant does not have a full appreciation of their conditions.
There is no point holding evidence or Case Law for an appeal to the Upper Tribunal, but be very careful in quoting any Case Law, they are rarely generalised, so you need to fully understand what the case means and just as importantly, what it does not.
Regulation 34.2 is probably the most useful with regard to fluctuating conditions
www.legislation.gov.uk/uksi/2008/794/regulation/34/made
Gordon
I will try and answer your questions but we cannot provide specific advice without having a detailed knowledge of a claimants case, which is not possible in the forum.
Tribunal cases are won by the claimant showing that they meet the criteria for the benefit, so your approach makes sense, however, there are two Exceptional Circumstances Regulations, Reg. 29 applies to work and the WRAG and Reg. 35 applies to Work Related Activity and the Support Group, so you will not get a SG award by showing they are in danger by working, only WRAG.
Ideally all submissions and evidence should be with the Tribunal Service at least two weeks before the hearing so that they can be copied and circulated to all parties, it is possible to include additional papers on the day, but the more pages the more likely it is for the case to be adjourned, so as a general rule stick to one page and two at the very most, and provide five copies.
It is far better that a submission is written in the claimants words, however, it is acceptable to write on their behalf if their is good reason to do so, for example; the claimant does not have a full appreciation of their conditions.
There is no point holding evidence or Case Law for an appeal to the Upper Tribunal, but be very careful in quoting any Case Law, they are rarely generalised, so you need to fully understand what the case means and just as importantly, what it does not.
Regulation 34.2 is probably the most useful with regard to fluctuating conditions
www.legislation.gov.uk/uksi/2008/794/regulation/34/made
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
The following user(s) said Thank You: AnneR
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- bro58
10 years 5 months ago - 10 years 5 months ago #113967 by bro58
Replied by bro58 on topic First time at an ESA appeal - help! (please :) )
Hi AR,
You may pick up some useful tips from the docs below.
www.benefitsandwork.co.uk/forum?view=top...id=10&id=87354#87354
Winning Ways Top Tips for Reps
Judge Boyd Online Resource
Good luck !!!
bro58
You may pick up some useful tips from the docs below.
www.benefitsandwork.co.uk/forum?view=top...id=10&id=87354#87354
Winning Ways Top Tips for Reps
Judge Boyd Online Resource
Good luck !!!
bro58
Last edit: 10 years 5 months ago by bro58.
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- AnneR
- Topic Author
10 years 5 months ago #114036 by AnneR
Replied by AnneR on topic First time at an ESA appeal - help! (please :) )
Hi Bro58
Just wanted to say a proper thank you for your post - the information has been incredibly useful, especially the Judge Boyd document. I'll let you know how the appeal goes.
Annie
Just wanted to say a proper thank you for your post - the information has been incredibly useful, especially the Judge Boyd document. I'll let you know how the appeal goes.
Annie
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- slugsta
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10 years 5 months ago #114037 by slugsta
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by slugsta on topic First time at an ESA appeal - help! (please :) )
Good luck Annie!
Nothing on this board constitutes legal advice - always consult a professional about specific problems
The following user(s) said Thank You: AnneR
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