7 January 2010
Benefits and Work is to provide free representation at the upper tribunal (UT) for a limited number of claimant members with appeals relating to the work capability assessment for employment and support allowance appeals.
What is an appeal to the UT?
If you are unhappy with an ESA decision you can appeal to a first-tier tribunal. If you are unhappy with the first-tier tribunal’s decision you may be able to appeal to the upper tribunal on a point of law.
The DWP also have the right to apply to appeal to the upper tribunal on a point of law if they are unhappy with a decision.
What is a point of law?
A point of law could be something like:
The tribunal failed to take into account a material fact.
The tribunal made a mistake about a material fact.
The tribunal made a mistake in their interpretation of the law.
Why are UT decisions important?
An upper tribunal decision is binding on first-tier tribunals and decision makers. However, it’s not binding on other upper tribunal judges, so it’s not unusual to find two conflicting decisions about the same issue.
Why are you doing this?
Benefits and Work is a tiny organisation with a very limited amount of resources, so we have to think carefully about how we invest them. We’ve decided that over the coming few years, binding case law in relation to the work capability assessment will be vitally important to many people’s lives. So we want to make sure that as many people as possible get the chance to appeal to the upper tribunal, or to mount a realistic challenge to a DWP appeal, where there is an issue at stake which could affect a lot of other claimants.
When you say free, what do you mean exactly?
We mean we won’t charge you a penny. You’ll need to pay for the cost of posting us a set of appeal papers. But we won’t charge you for our time, for telephone calls, postage, our travel to a hearing if necessary or any other costs we incur.
Will there be other costs for me?
There are no court costs involved in appeals to the upper tribunal. Most UT appeals are paper hearings, but occasionally, for more complex issues, an oral hearing may be required. But even then, the claimant themselves is very unlikely to be required to attend because the hearing is about the law, rather than about your condition or difficulties with different activities. We will attend in such cases, however, and present legal arguments in support of your appeal. All the costs of such representation will be met by us.
If you do attend, we would not be able to meet your travel costs, although the tribunal will probably do so.
Will you take on every case you’re asked to?
Sadly, we definitely won’t. We’ll only be taking on a small number – how many depends on how complex and time consuming each one is.
We’ll also only be taking on cases where we think a decision will apply to a large number of other claimants. So, please don’t automatically assume we’ll be able to take on your case – demand is likely to far outstrip supply.
Can anyone apply to have their case taken on by you?
Not quite anyone. You need to be a subscribing member of the site at the time you contact us and you need to have already been a member on the date of your first-tier tribunal hearing. (We don’t want people subscribing just in the hope of getting representation, because they will probably be disappointed).
How do I apply to have you take on my case?
Initially, you just need to drop us an email when you have a copy of the first-tier tribunal’s written reasons for its decision. We’ll get back to you.
How do I get these written reasons?
See our ESA appeals guide for details of what to do if your appeal is unsuccessful, there are details there.
We’ll be publishing more information about how to appeal to the upper tribunal throughout 2010.
Does free representation apply to organisations who are members of Benefits and Work?
Sadly, we can’t afford to offer a free service to organisations, but we will be happy to discuss representation for a fee. Please contact us for more details.