Appeal against esa tribunal conduct and result

Last Thursday I acted as representative to someone at an ESA Tribunal. The tribunal was badly run and completely biased. I was led to believe that only mobility issues could be considered and was only allowed to speak at the end when the decision had clearly already been made to refuse the appeal and that the person had to remain in the wrag . In addition the judges report was full of errors and was couched in completely contemptuous language. Is there any thing we can do about all of this?
On a related matter this person is on income based esa which runs out in April. It is based on contributions in the 1990s before they went on to Incapacity Benefit. I thought that people on Incapacity Benefit were credited with contributions. Is there that can be done about this?
Thanks

To add to Gordon's excellent advice - people on IB were routinely switched to contributory ESA. NI credits made whilst claiming ESA only usually count towards the State Retirement Pension rather than any other contributory benefits

Hi,

Welcome to Benefits and Work

If your forum name is also your real name, you may wish to change it to maintain some anonymity.

This can be done quite easily by following the instructions on this FAQ :

My full name is showing, how can I stop it?

You may be able to appeal to The Upper Tier Tribunal (UTT) if you can show that The Tribunal have "erred in law" in coming to their decision.

An : Error of Law can be any of the following :

“Errors of Law” can include : Insufficient findings of fact, failure to explain why they have disregarded any evidence favourable to the appelant, failure to explain why they’ve relied on any material evidence against the appelant particularly where that evidence was put at issue by the appelant, complete mishandling of relevant evidence or applying the law incorrectly, etc, as well as the list included in the link above.

You would first have to request a : Written Statement of Reasons. (S of S)

You have one month from the date of The Tribunal's decision to request this :

Sending Documents to the DWP, ATOS or The Tribunal Service (TS)

Once you have received the written S of S, you then have one month to seek leave to appeal to The UTT.

Although Legal Aid is no longer available for First Tier Tribunal (FTT) Appeals, it is still available for UTT appeals.

Where to get advice

Dependent on where you live, see also :

Legal Aid for UTT Appeals for London, East, S/E England and The Midlands.

Have a read through the following :

Appealing to The Upper Tier, DR UK Factsheet

It is not uncommon for The FTT to refuse your request to appeal to The UTT.

Under that scenario, you can make a request directly to The UTT.



If your friend in on Income Related (IR) (Income Based) ESA, there is no 365 days time limit with respect to payment.

There is no time limit at all for IR ESA, even if the claimant is only being paid a few pence IR ESA, top-up.

The 365 days limit to payment is for Contribution Based (CB) ESA only, if not in The Support Group (SG) :

12 Month Limit for ESA(CB)

From our : ESA FAQ’s

If they were previously in receipt of Incapacity Benefit, (IB) that means that they must have had the necessary number of NI Contributions gained from employment when their IB Claim started.

They would have continued to receive NI Credits (Stamps) whilst in receipt of IB.

On successful transfer over to ESA (In the WRAG or The SG) they would be paid CB ESA, see : What will I be transferred to?

From our : IB, IS, SDA, Migration to ESA FAQ’s

As you will see, it is possible that someone can be paid both CB ESA, with IR ESA top-ups, much the same as they could have been in receipt of IB with Income Support (IS) top-ups.

However, as a result of The Welfare Reform Act 2012, payment of CB ESA if not in The SG was limited to 365 days

Any NI Credits awarded whilst claiming ESA only go towards the claimant's entitlement to The State Pension.

They do not give ongoing entitlement to payments of CB ESA.

So there is no time limit to payment of CB ESA whilst in The SG, and their is no time limit if any part of your ESA is IR ESA, whether you are in The Assessment Phase, in The WRAG or in The SG.

There is a 365 days time limit if in receipt of CB ESA only, in The WRAG or in The Assessment Phase of ESA.

If your friend was in receipt of CB ESA only, they should be financially assessed sometime before their payments of CB ESA are due to cease.

This is generally done by filling in and returning an ESA 3 Form, which you may have to request from the DWP.

Please reply to this post if you have any further queries.

bro58

Thanks for all the replies to my questions. I am very grateful for them .I will try to take it all in and see how we can take things forward. The name displayed is not my real name - hint: I am a Celtic supporter!

jmlennon18 wrote: Thanks for all the replies to my questions. I am very grateful for them .I will try to take it all in and see how we can take things forward. The name displayed is not my real name - hint: I am a Celtic supporter!

Hi jml18,

You are welcome !!

Taking an appeal to The UTT is not a straightforward issue, and if you feel that it may be in the best interests of the person that you are trying to help/represent, you should not hesitate to seek professional advice.

In the mean time, to comply with time constraints, there is nothing to stop you making a written request for The Tribunal's Written Statement of Reasons, you should also receive a Record of Proceedings. (R of P)

If you are in Scotland, I believe that the proceedings are Audio Recorded. that being the case, in stead of receiving a written R of P, you would receive the audio recording.

bro58