ESA Appeal refused BUT heard earlier than told?

got a right one here. was given notice that the date of my appeal would be sometime in January.

I responded as not attending and to be heard without me as I am unfit to attend. I was obtaining further evidence to submit and then I get a letter through the door telling me the appeal had been held on 8th October and that the DWP's decision to refuse ESA had been upheld.

Now, I spoke to them and they said I could appeal again but would then receive no benefits whilst that appeal went ahead OR I could reclaim ESA as my condition has deteriorated since my initial claim for ESA in December 2009.

I am totally furious that the appeal was heard early and I didn't have the chance to submit further evidence. I need to reclaim ESA as I am worse and my application for DLA that they are still considering is in jeopardy now !

What should I do?

thank you for any help you can give me.

P.s. on the ESA test I score 45 points on descriptors but the ATOS medical said there was nothing wrong with me and gave me 0 points.

You mention your condition deteriorating. If this is so, you should consider making a fresh claim. You can have both a fresh claim and an appeal on a previous claim running at the same time.

that is not what DWP said. they said if I appeal the tribunals decision then I cant claim ESA, even on a new deteriorating claim?

If I CAN claim a new ESA based on deterioration on what grounds can I appeal the appeal decision?

thank you !!

just to make sure I have this right.

Just been refused ESA on appeal where they heard my appeal 3 months earlier than they said they would and thus denied me a chance to submit more evidence.

DWP said I could claim ESA as a new claim because my condition has deteriorated BUT if I did that then I couldn't appeal against the appeal that had just been decided.

However, a member on here says I can appeal the appeal AND claim ESA again as a fresh claim because there has been a deterioration.

If this is true then on what grounds can I appeal against the appeal they decided I scored zero points on?

Using the descriptors I score a minimum of 45 points easily but the ATOS guy thought otherwise.

Another thing, my doctors cert is valid until 23 November. Do I take it that they think its bogus and will ignore it and I will have to get a new one?

thank you for any help !!

Lisa

To reiterate what has been said in an earlier post together with further information:-

You can appeal against the tribunal's decision (first-tier tribunal) on points of law, but not on the facts of the case.

Examples of errors of law are-

The Tribunal -
• did not apply the correct law to your case;
• wrongly interpreted the law;
• did not observe the rules of natural justice;
• had no evidence, or not enough evidence, to support its decision;
• did not give adequate reasons for its decision.

You have one month to appeal from the date of the decision of the tribunal which dismissed your appeal. Further details can be found HERE. .

There is nothing preventing you from submitting a further ESA claim because of a deterioration in your health. In fact if you have not already done so, you should claim immediately. Hopefully it will not happen, but if the new claim was disallowed, you can also appeal to a first-tier tribunal against the subsequent adverse decision.

What the DWP have told you is patently wrong, because there is no restriction in law to prevent multiple claims and appeals. All claims must carry a formal decision and in most cases give the right of appeal.

Hi lochlisa

It's a bit late saying this now but when you ask for a paper hearing it is important to submit any further evidence as soon as possible, as you are not given a precise date for the paper hearing. The estimate of when the hearing would take place may have been in relation to an oral hearing, opting for a paper hearing would have speeded up the process.

I would advise you to see a WRO as soon as you get your statement of reasons, and hopefully you will have grounds of appeal.

Best of luck with your appeal and new claim.

Derek