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Appealing a tribunal decision, ESA, LWRCA, refusal to accept Fit Notes
- Daz1967
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5 months 4 weeks ago #291636 by Daz1967
Appealing a tribunal decision, ESA, LWRCA, refusal to accept Fit Notes was created by Daz1967
Hello,
I have subscribed after a recommendation from my neighbour. I had to stop working in March 2022 due to continuing knee problems. I have had surgery to remove a plate and pins from my left knee/leg. I have bone on bone and arthritis in my left knee. According to a letter from the consultant, it seems as though I will need a full or partial knee reconstruction. The Job Centre would not accept my Doctors/Consultant Fit Notes and said that I was capable of some kind of work. I also suffer with constant sciatica and lower back pain and I can’t sit or stand for very long. When the pain is at its worst I have to lie down to take the weight off my knees and lower backI am also receiving physio for post surgery right shoulder operation and will also be getting physio for my lower back and hips. I appealed against the UC decision that I am fit for work. All I was told was that my appeal would take place in Essex. I heard nothing for months and months so I rang the HMCTS on the 25/03/2024. I was told that they had sent me a letter on the 20/03/2024 and that my appeal date was the 18/04/2024. I waited for this letter to arrive but nothing turned up. I rang the HMCTS again and was told by another person that there was nothing on their system to say that they had sent me a letter and didn’t know why I had been told this. I was then told to send details, Doctors letters and anything else that was relevant to my appeal straight to the HMCTS marked URGENT. I did send an email with the relevant information. On the 19/04/2024 I received a letter saying that my appeal had been heard in Cardiff and had been refused. A couple of days later I received an email from HMCTS saying sorry for their delayed response and that they can see that my appeal is now closed and that they can confirm that they added my evidence to my appeal but not actioned this out to all parties. Does this mean that the Judge and Medical ‘expert’ did not get to see my evidence ? I have emailed the HMCTS to inform them that I wish to appeal their decision and have yet to hear back from them.
I applied for PIP and have been awarded payment for day to day living but not for mobility. I reapplied for mobility payment but this was refused again.
I was also enrolled onto a mandatory Restart Scheme in April 2023 for a year. On a conference call between myself, my work coach and the Restart employee they asked my work coach if it was worth me enrolling as I was not in a position to undertake any kind of work. They were told that I had to attend. I went to a Jobs Fair through the Restart Scheme and not one company would employ me due to my medical problems.
Now that my appeal has been heard and closed down, I have to sign on at the Job Centre every 2 weeks and have had to accept my work commitments and actively look for work or I will get sanctioned.
I have also got a mandatory appointment at the Job Centre tomorrow (21/05/2024) with someone from National Careers to help me get back to work.
I am not receiving ESA or LCWRA as I have not been advised by my work coach that I can apply for them and I am not sure if I can claim these.
I have had to fit a stairlift in our flat as I cannot carry items ( ie: shopping bags) up the stairs. I cannot walk very far as I get increased pain in my left knee, lower back and get breathless very quickly (especially on inclines). I am also starting to get pains in my right knee which I think is due to limping for over 2 years and bearing most of my weight on it. I have also had an MRI scan on my hips and have been told that I have mild arthritis in my right hip. I have to use a walking stick when out and about (ie: shopping, hospital/doctors/Job Centre appointments). I was advised to contact Age UK Gloucestershire to help me apply for a Blue Badge even though I am not old enough. I have applied for a Blue Badge and I have been contacted by letter asking for more details. I am waiting to hear back from them.
I hope that someone on here can advise me or point me in the right direction before I have a mental breakdown. I have had to go to my Doctor as all the stress has affected my mental health and I feel as though my head is going to explode.
Thanks
Daz
I have subscribed after a recommendation from my neighbour. I had to stop working in March 2022 due to continuing knee problems. I have had surgery to remove a plate and pins from my left knee/leg. I have bone on bone and arthritis in my left knee. According to a letter from the consultant, it seems as though I will need a full or partial knee reconstruction. The Job Centre would not accept my Doctors/Consultant Fit Notes and said that I was capable of some kind of work. I also suffer with constant sciatica and lower back pain and I can’t sit or stand for very long. When the pain is at its worst I have to lie down to take the weight off my knees and lower backI am also receiving physio for post surgery right shoulder operation and will also be getting physio for my lower back and hips. I appealed against the UC decision that I am fit for work. All I was told was that my appeal would take place in Essex. I heard nothing for months and months so I rang the HMCTS on the 25/03/2024. I was told that they had sent me a letter on the 20/03/2024 and that my appeal date was the 18/04/2024. I waited for this letter to arrive but nothing turned up. I rang the HMCTS again and was told by another person that there was nothing on their system to say that they had sent me a letter and didn’t know why I had been told this. I was then told to send details, Doctors letters and anything else that was relevant to my appeal straight to the HMCTS marked URGENT. I did send an email with the relevant information. On the 19/04/2024 I received a letter saying that my appeal had been heard in Cardiff and had been refused. A couple of days later I received an email from HMCTS saying sorry for their delayed response and that they can see that my appeal is now closed and that they can confirm that they added my evidence to my appeal but not actioned this out to all parties. Does this mean that the Judge and Medical ‘expert’ did not get to see my evidence ? I have emailed the HMCTS to inform them that I wish to appeal their decision and have yet to hear back from them.
I applied for PIP and have been awarded payment for day to day living but not for mobility. I reapplied for mobility payment but this was refused again.
I was also enrolled onto a mandatory Restart Scheme in April 2023 for a year. On a conference call between myself, my work coach and the Restart employee they asked my work coach if it was worth me enrolling as I was not in a position to undertake any kind of work. They were told that I had to attend. I went to a Jobs Fair through the Restart Scheme and not one company would employ me due to my medical problems.
Now that my appeal has been heard and closed down, I have to sign on at the Job Centre every 2 weeks and have had to accept my work commitments and actively look for work or I will get sanctioned.
I have also got a mandatory appointment at the Job Centre tomorrow (21/05/2024) with someone from National Careers to help me get back to work.
I am not receiving ESA or LCWRA as I have not been advised by my work coach that I can apply for them and I am not sure if I can claim these.
I have had to fit a stairlift in our flat as I cannot carry items ( ie: shopping bags) up the stairs. I cannot walk very far as I get increased pain in my left knee, lower back and get breathless very quickly (especially on inclines). I am also starting to get pains in my right knee which I think is due to limping for over 2 years and bearing most of my weight on it. I have also had an MRI scan on my hips and have been told that I have mild arthritis in my right hip. I have to use a walking stick when out and about (ie: shopping, hospital/doctors/Job Centre appointments). I was advised to contact Age UK Gloucestershire to help me apply for a Blue Badge even though I am not old enough. I have applied for a Blue Badge and I have been contacted by letter asking for more details. I am waiting to hear back from them.
I hope that someone on here can advise me or point me in the right direction before I have a mental breakdown. I have had to go to my Doctor as all the stress has affected my mental health and I feel as though my head is going to explode.
Thanks
Daz
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- Gary
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5 months 4 weeks ago #291638 by Gary
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gary on topic Appealing a tribunal decision, ESA, LWRCA, refusal to accept Fit Notes
Hi Daz1967
Welcome to the forum.
You might want to have a look at the following FAQ which explains where everything is; www.benefitsandwork.co.uk/guides-for-claimants/faq/forum.
The first thing you want to do is write to HMCTS and ask for the Written Statement of Reasons (WSOR), also ask for a transcript of the recording that should have been made during the hearing. (You may only get a recording so you may have to listen to this and copy it down yourself.) Compare the transcript with the WSOR, in order to appeal further you will need to identify at least one error of law.
You need to do this within one month of the hearing date so as not to be out of time.
We would also advise you to seek help from your local Welfare Rights Organisation; advicelocal.uk
Gary
Welcome to the forum.
You might want to have a look at the following FAQ which explains where everything is; www.benefitsandwork.co.uk/guides-for-claimants/faq/forum.
The first thing you want to do is write to HMCTS and ask for the Written Statement of Reasons (WSOR), also ask for a transcript of the recording that should have been made during the hearing. (You may only get a recording so you may have to listen to this and copy it down yourself.) Compare the transcript with the WSOR, in order to appeal further you will need to identify at least one error of law.
You need to do this within one month of the hearing date so as not to be out of time.
We would also advise you to seek help from your local Welfare Rights Organisation; advicelocal.uk
Gary
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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- Daz1967
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5 months 4 weeks ago #291659 by Daz1967
Replied by Daz1967 on topic Appealing a tribunal decision, ESA, LWRCA, refusal to accept Fit Notes
Hi Gary,
Thank you for your advice. I have emailed the HMCTS stating that I wish to appeal their decision within a month of my hearing but not heard anything from them yet. I will email them again and ask for the transcript of the hearing and WSOR. I was told by my neighbour that as the statement re: the refusal of my appeal was not signed then it isn't a legal document. I'm not sure if this is true ?
Regards
Daz
Thank you for your advice. I have emailed the HMCTS stating that I wish to appeal their decision within a month of my hearing but not heard anything from them yet. I will email them again and ask for the transcript of the hearing and WSOR. I was told by my neighbour that as the statement re: the refusal of my appeal was not signed then it isn't a legal document. I'm not sure if this is true ?
Regards
Daz
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- Gary
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5 months 4 weeks ago #291680 by Gary
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gary on topic Appealing a tribunal decision, ESA, LWRCA, refusal to accept Fit Notes
Hi Daz1967
Seek advice from your local Welfare Rights Organisation, it sounds as though your neighbour knows what they are talking about.
Gary
Seek advice from your local Welfare Rights Organisation, it sounds as though your neighbour knows what they are talking about.
Gary
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- LL26
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5 months 4 weeks ago - 5 months 4 weeks ago #291686 by LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by LL26 on topic Appealing a tribunal decision, ESA, LWRCA, refusal to accept Fit Notes
Hi Daz1967,
You were not present at the hearing because there was a confusion over the date. It is highly likely that the evidence you submitted wasn't with the Tribunal because the office weren't sure what was happening!
This would appear to amount to a procedural irregularity, and it is likely you have not had a fair hearing. I am assuming that you would have attended the hearing if you had known about it. Here is the relevant Rule The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008
Setting aside a decision which disposes of proceedings 37.—(1) The Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision, or the relevant part of it, if— (a)the Tribunal considers that it is in the interests of justice to do so; and (b)one or more of the conditions in paragraph (2) are satisfied. (2) The conditions are— (a)a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative;
(b)a document relating to the proceedings was not sent to the Tribunal at an appropriate time;
(c)a party, or a party’s representative, was not present at a hearing related to the proceedings; or
(d)there has been some other procedural irregularity in the proceedings.
(3) A party applying for a decision, or part of a decision, to be set aside under paragraph (1) must make a written application to the Tribunal so that it is received no later than 1 month after the date on which the Tribunal sent notice of the decision to the party.
You have a month to ask for the decision to be set aside once the decision notice is sent out. Since the appeal has already been refused, await the notice and write in again and quote from Rule 37 (2)b & d.
You have a right to attend your hearing. All documents should be before the Tribunal. Under Rule 2 Tribunal has an 'overriding objective of fairness'. As part of that duty -the Tribunal needs to ensure all parties can fully participate in the hearing.
In addition you have a right to a fair hearing under ECHR law Article 6. I don't think you have to wait for the WSOR. (But you have already asked for this so no harm there) Write a letter as soon as the decision arrives.
Head the letter Request to set aside Decision Put your name/NI number/appeal ref no Hearing Date X at Cardiff [acknowledge the previous letter and request for the WSOR . ] Then explain eg I was not aware of the hearing (and explain briefly as you have above.)and was therfore not given the opportunity to attend and give evidence. In addition documents that I had sent in earlier were before not before the Tribunal.
You were not present at the hearing because there was a confusion over the date. It is highly likely that the evidence you submitted wasn't with the Tribunal because the office weren't sure what was happening!
This would appear to amount to a procedural irregularity, and it is likely you have not had a fair hearing. I am assuming that you would have attended the hearing if you had known about it. Here is the relevant Rule The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008
Setting aside a decision which disposes of proceedings 37.—(1) The Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision, or the relevant part of it, if— (a)the Tribunal considers that it is in the interests of justice to do so; and (b)one or more of the conditions in paragraph (2) are satisfied. (2) The conditions are— (a)a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative;
(b)a document relating to the proceedings was not sent to the Tribunal at an appropriate time;
(c)a party, or a party’s representative, was not present at a hearing related to the proceedings; or
(d)there has been some other procedural irregularity in the proceedings.
(3) A party applying for a decision, or part of a decision, to be set aside under paragraph (1) must make a written application to the Tribunal so that it is received no later than 1 month after the date on which the Tribunal sent notice of the decision to the party.
You have a month to ask for the decision to be set aside once the decision notice is sent out. Since the appeal has already been refused, await the notice and write in again and quote from Rule 37 (2)b & d.
You have a right to attend your hearing. All documents should be before the Tribunal. Under Rule 2 Tribunal has an 'overriding objective of fairness'. As part of that duty -the Tribunal needs to ensure all parties can fully participate in the hearing.
In addition you have a right to a fair hearing under ECHR law Article 6. I don't think you have to wait for the WSOR. (But you have already asked for this so no harm there) Write a letter as soon as the decision arrives.
Head the letter Request to set aside Decision Put your name/NI number/appeal ref no Hearing Date X at Cardiff [acknowledge the previous letter and request for the WSOR . ] Then explain eg I was not aware of the hearing (and explain briefly as you have above.)and was therfore not given the opportunity to attend and give evidence. In addition documents that I had sent in earlier were before not before the Tribunal.
The hearing should be set aside as follows
•The failure to notify myself of the hearing, and failure to forward relevant documents to the Tribunal amounts to a procedural irregularity under Rule 37. •I did not receive a fair hearing which is a Breach of Article 6 ECHR
•The Tribunal did not meet its 'overriding objective ' per Rule 2(2)(c)ensuring, so far as practicable, that the parties are able to participate fully in the proceedings.
The decision of X date should therefore be set aside.
Yours faithfully etc
Hopefully this letter will get the decision set aside.
Let us know how you get on.
Good luck.
LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Last edit: 5 months 4 weeks ago by LL26.
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- Daz1967
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5 months 2 weeks ago #292143 by Daz1967
Replied by Daz1967 on topic Appealing a tribunal decision, ESA, LWRCA, refusal to accept Fit Notes
Hi Gary and LL26,
Just a quick update.
I emailed HMCTS saying that I would like another hearing as I presumed that the Judge and Medical expert did not receive my supporting evidence and I was not informed at which Court my appeal was being held.
On Saturday I received a letter from HMCTS stating that the judge has granted my application for another appeal and will be heard by a new tribunal.
The 'Set Aside Decision Notice' states
1: The Appellant has made an application for a set aside of the Tribunal's decision dated 18th April 2024.
2: The decision is set aside due to a procedural irregularity pursuant to Rule 37 of the Tribunal Procedure (First Tier) (Social Entitlement Chamber) Rules 2008. The appeal will be heard by a different Tribunal.
3: Documentation was sent in to the Tribunal by myself on 15th April 2024 but this was not before the Tribunal when it decided the appeal. It is in the interests of justice to set aside the decision, as the Appellant would not have known the date that their appeal was to be decided as it was determined on the papers, so would not have been aware of a date by which all evidence should have been lodged with the Tribunal Service.
4: The Appellant has indicated that he is willing to attend an oral hearing. This is the best way that he can directly inform the Tribunal of his difficulties.
5: The appeal should be listed for an in person hearing at the closest venue to myself with a time estimate of 45 minutes.
6: Judge XXXX and Dr XXXX are excluded from future involvement with this appeal.
This is great news !! I just hope I can afford to travel to wherever they decide to hold the new Tribunal.
Thank you for your help with this matter and I will keep you informed of the outcome.
Regards
Daz
Just a quick update.
I emailed HMCTS saying that I would like another hearing as I presumed that the Judge and Medical expert did not receive my supporting evidence and I was not informed at which Court my appeal was being held.
On Saturday I received a letter from HMCTS stating that the judge has granted my application for another appeal and will be heard by a new tribunal.
The 'Set Aside Decision Notice' states
1: The Appellant has made an application for a set aside of the Tribunal's decision dated 18th April 2024.
2: The decision is set aside due to a procedural irregularity pursuant to Rule 37 of the Tribunal Procedure (First Tier) (Social Entitlement Chamber) Rules 2008. The appeal will be heard by a different Tribunal.
3: Documentation was sent in to the Tribunal by myself on 15th April 2024 but this was not before the Tribunal when it decided the appeal. It is in the interests of justice to set aside the decision, as the Appellant would not have known the date that their appeal was to be decided as it was determined on the papers, so would not have been aware of a date by which all evidence should have been lodged with the Tribunal Service.
4: The Appellant has indicated that he is willing to attend an oral hearing. This is the best way that he can directly inform the Tribunal of his difficulties.
5: The appeal should be listed for an in person hearing at the closest venue to myself with a time estimate of 45 minutes.
6: Judge XXXX and Dr XXXX are excluded from future involvement with this appeal.
This is great news !! I just hope I can afford to travel to wherever they decide to hold the new Tribunal.
Thank you for your help with this matter and I will keep you informed of the outcome.
Regards
Daz
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