My Story Falure to dsiclose medical Improvement

Thanks for that. All this drives me potty as you can imagine. Thew latest in the sequence is a letter from the sRA chasing me on that front.

I do sometimes feel like I am under siege being attacked from all sidfes and at times have felt very isolated and extremely depressed by all this but my family keeps me going.

Due to the case being adjourned it has now interfered with my medical treatment in that whilst having to look bakc at the past means that CBT is likely to be counter procductive. Then I have another one of these work focused interviews shortly which I could do without with all this going on in my life but the person dealing with it has been ok thus far.

Anyhow thanks everyone for yuor support out there!

R

Well another additional bit. I wrote to the Criminal Appeals offce trying to find when my appilvation to apply for permission to appeal out of time will be heard. They essentially don't have a clue as it is not yet allocated to a lawyer and have no idea when that will be. Orignally I was going to seek a postponement of the Tribunal in the hope of an early hearing on the CA but the letter shows the chances of this happening in the foreseeable future are remote. The only reason I wrote is that the SRA are now again chasing me about continuing with there procvedures depnding how long it will before the CA hear my appeal. Catch 22 as always.

Ron

I wonder how many other people are going to have their health destroyed by this ridiculous system. It is almost impossible to stay positive. One feels criminalised for being ill and criminalised for trying to improve one's own health or trying any sort of work-related activity. How do jobseekers live on £65 per week?

Steve Donnison wrote:

hi Ron,

Are you planning to appeal the DLA decision? There certainly seems to be grounds for an award of DLA based on what was found at your ESA medical.

Good luck,

Steve

I thought I would follow this comment up ast this point. Basically I recived more appeal papers todaythis relates to the last claim I made after the ESA medical.

You may recall the details I set out. Well the argument from the Department is to the effect the report sdhows that I have no signifcant fuincrtional ability but the care needs are mentoal health aspects are not saupported. May they are reading a different report to the one I shared on here and in my possession. Absoutely ludicrous. Anyhow here is another 100 pages for the bundles! They refer to my cogntive ability but seem to have forgotten to address whether dyslexia can give riase to care needs which is in the educartional psycholgist report (apart from all the the other factors).

Just wound me up completely but I guess no suprise at all.

Ron

Hers juist a bit of a twist. My wife made an application for DLA and was awarded lower rate care component. She was not happy with that so appealed the decision. You wiull recall in my discussions here that at my last tribunal she bewcame unwell so she decided she could not face an oral hearing so written represerntations were sent by her rep (different to my own).

Well what happenes is rather than an icrease the Tribunal decided that there was not entiltmen5t to any component from the dat5e of claim. Shew is devastated. Yes I knowe the Tribunal does have power to do this but I was suprised at the uotxcome and yes she has sent a request for written reasons for the decision.



Ron

Ron22 wrote:

Hers juist a bit of a twist. My wife made an application for DLA and was awarded lower rate care component. She was not happy with that so appealed the decision. You wiull recall in my discussions here that at my last tribunal she bewcame unwell so she decided she could not face an oral hearing so written represerntations were sent by her rep (different to my own).

Well what happenes is rather than an icrease the Tribunal decided that there was not entiltmen5t to any component from the dat5e of claim. Shew is devastated. Yes I knowe the Tribunal does have power to do this but I was suprised at the uotxcome and yes she has sent a request for written reasons for the decision.



Ron

The tribunal do have the power to decrease or remove an award of DLA, but they must issue a warning to the appellant if they intend to do this.

Paragraph 61A of The Tribunal Benchbook (2006), which was the last print released into the public domain states:-

61A WARNING

1. In certain situations it may be necessary for the tribunal to give a warning to an appellant that he might end up losing an existing entitlement if he proceeds with his appeal, and that he might therefore wish to consider withdrawing.

2. This will arise most often in a disability living allowance appeal where for example the appellant has an award of middle rate care but in their preview the tribunal consider that the evidence only supports lowest rate care or indeed no award of care at all. It could also arise in an IIDB appeal.

3. In these cases the appellant must, in the interests of natural justice, be told at the beginning of the hearing that the tribunal has the power in appropriate cases to remove or reduce an existing award because he may not have appreciated this and may think that his existing award cannot be touched, particularly when he has only appealed against the other disability living allowance component.

4. And sometimes a representative will even say: We are only asking the tribunal to consider the mobility component, we do not want you to consider the existing award of middle rate care component - we are happy with the existing award of middle rate and that is not in issue. But whilst it might not be in issue as far as the representative is concerned it can be put in issue by the tribunal if they consider it appropriate to do so, by virtue of sect 12(8)(a) SSA 1998 which, in stating that the tribunal need not consider any issue that is not raised by the appeal , makes it clear that the tribunal can consider any such issue if it decides to do so. See 11 below.

5. When to give the warning? Should a warning be given in every case where the appellant has an existing award, or only where there is evidence that suggests the award might be at risk? It is suggested that the latter is preferable, as otherwise the appellant s anxiety might be needlessly increased. There is in fact a note on the TAS1 MED, under 'What is a Tribunal?' as follows - 'The Tribunal will listen to both sides of the case and make up its mind about the facts. It will apply the law to the facts and makes its decision. This could mean that any benefit you may be getting could go up or down. The Tribunal will warn you if there is a risk that any benefit might be reduced. (You can withdraw your appeal at any time.)' So this can be quoted to the appellant if necessary to counter the suggestion that nobody had ever told him.

6. How to give the warning? If the appellant is represented, ask if the possible loss of an existing entitlement has been previously discussed if the representative is competent it should have been but if not, allow time for the appellant and his representative to leave the tribunal room and discuss the options (proceeding or withdrawing).

7. If the appellant is not represented, he should be given time to think about whether to withdraw or proceed. He may well not have noticed the TAS1 statement and so will not have been aware until now that his existing award might be at risk, and he must therefore be given the opportunity to think about it and seek advice on the matter if he wishes (and if skilled advice is locally available). If however he insists on going ahead on the day despite the warning and if the tribunal are satisfied that he fully understands the risk then the tribunal should go ahead obviously noting the record of proceedings appropriately.

8. If it only becomes clear during the hearing that the appellant might lose an existing entitlement, e.g. when he gives evidence about walking which suggests his award of higher rate mobility might not be correct, a warning should then be given, perhaps after asking the parties to withdraw to enable the tribunal to discuss the issue further then proceed as above, depending on whether or not the appellant is represented.

9. How should the warning be phrased? Whatever is said might give the impression that the case has been pre-judged, but a formula such as the following might be suitable, It is important that you realise that we have the power to increase an award, to leave the award as it is, or to reduce or remove it altogether. We have not yet made a decision on your appeal and will not do so until we have heard all the evidence but from the evidence in the papers/given by you today it seems to us that your existing award may be at risk if you go ahead with the appeal. We are therefore going to give you some time to consider what you want to do?

If asked, there is no ho harm in pointing out which evidence has given rise to the doubt.

10. Then proceed as above, making sure to note it all on the record of proceedings.

11. Even though a warning has been given it is not necessary to exclude the members of the tribunal from the next hearing if the case is adjourned, at any rate if no evidence has been taken. If evidence has been taken then the adjourned hearing must be before the same tribunal or an entirely differently constituted tribunal see paragraph 3.3 above.

12. AND NOTE that you should include in any full statement a sentence or two stating that the tribunal decided to exercise its judicial discretion to apply section 12(8)(a) and put the other component/award in issue even though neither party to the appeal had done so and stating why. This has been emphasised in two recent Tribunal of Commissioners decisions, namely R(IB)2/04 and CDLA/2899/2004. In paragraph 94 of the former decision it was said There must however be a conscious exercise of this discretion and (if a statement of reasons is requested) some explanation in the statement as to why it was exercised in the manner in which it was.

As your wife was unwell and unable to attend the appeal hearing, it would have proceeded as a paper hearing. This does not matter. Your wife was still entitled to be put on notice by the tribunal that they were considering withdrawing her DLA entitlement, and the fact that they failed to do so, is potentially an error of law which may be appealed to the Upper Tribunal.