E.S.A. Tribunal - outcome

M.E Sufferrer

You don't say when the original decision that you appealed was made, if it was six months or more, you should be able to apply for ESA again.

If you decide to appeal to the Upper Tribunal then you must to seek face to face support from an appropriate advisor, as they will be arguing points of law. You also need to be aware that it is possible that you will not receive the ESA assessment rate as you did when appealling to to Lower Tribunal.

ME/CFS is classed as a fluctuating illness, and there are additional rules that a tribunal need to take into account when making a decision, if these were ignored, then this could be considered a failure to apply the law correctly.

If you are not eligible to re-claim ESA then your choices are to become economically dormant or to claim JSA. With regard to the latter, the DWP has declared you fit, you might as well claim.

Hope this helps

Gordon

Debbie

I need to be very cautious in answering your questions. No one on this forum is qualified to give you the advice you need in order for you to make an informed decision. You MUST seek face to face advise from an appropriate advisor. especially if you are considering an appeal to the Upper Tribunal.

Any comments you receive on the forums is based on the individuals understanding of the relevant benefits and procedures, which may or may not be accurate.

I am awaiting my own appeal for ESA as a sufferer of ME/CFS, so I can empathise with your situation.

Section 30 and specifically 30(2)(b) of the The Employment and Support Allowance Regulations 2008 covers repeat claims. Basically after six months have elapsed from the original decision that you did not have Limited Capability for Work you are entitled to make a repeat application.

I sounds like the DWP are trying to take it from the date of your appeal, however, I do not believe this to be correct.

There are a number of references that may or may not be relevant to your case.

The Employment and Support Allowance Regulations 2008. PART 5 LIMITED CAPABILITY FOR WORK. 27. Claimant to be treated as having limited capability for work throughout a day.

In terms of case law CIB/6244/1997 would be expected to be relevant, however, its applicability may be affected bu what was presented to the Lower Tribunal.

Given your original decision was in March then JSA should not be a consideration, my reference to it was that since they had found you fit to work you might as well claim the benefit associated.

Hope this helps but please get advice.

Gordon