× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Reg 30 Refusal on no deteriation

SALee93
forum member

South Tyneside Homes

Send message

Total Posts: 5

Joined: 7 January 2016

I have clt who was assessed and turned down for ESA. This has been to tribunal (paper based hearing) and on paper was the correct decision. The problem arising is the paper does not reflect the reality.

The clt has learning difficulties and didn’t understand the importance of a face to face hearing or the need to provide further evidence to tribunal to dispute the HCP report. The report is the basis of the decision as they have deemed this more accurate than the clts mothers statement.

The clt has now reapplied for ESA and was turned down as her condition was deemed not to have worsened. In terms of reality that is true, she isn’t any worse, but she is worse than the assessment states she is.

We feel if the clt was sat in front of the tribunal they would see she is worse than the report states. The question therefore is it possible to appeal on that ground. Has her condition deteriorated sufficient to meet reg 30?

Mike Hughes
forum member

Senior welfare rights officer - Salford City Council Welfare Rights Service

Send message

Total Posts: 3138

Joined: 17 June 2010

Out of time for a UT application or a set aside?

Tom H
forum member

Newcastle Welfare Rights Service

Send message

Total Posts: 783

Joined: 23 June 2010

SALee93 - 26 July 2016 05:00 PM

We feel if the clt was sat in front of the tribunal they would see she is worse than the report states. The question therefore is it possible to appeal on that ground. Has her condition deteriorated sufficient to meet reg 30?

After researching it some time ago I came to the conclusion that it’s certainly arguable that there’s a freestanding right of appeal against the mere determination under Reg 30 that someone hasn’t worsened.  But it’s academic here because they’ve almost certainly failed your client again under a new WCA using the previous medical and/or last tribunal’s findings.  You, therefore, can simply challenge the new WCA in the normal way, ie MR then appeal.  The new tribunal is not bound by the previous tribunal’s decision even if there has been no worsening/new condition.  In other words, it is free to take a completely different view of the old medical as well as attach whatever weight it wishes to the client’s oral evidence on the day. 

 

 

[ Edited: 26 Jul 2016 at 06:02 pm by Tom H ]
Victor
forum member

Welfare Rights Officer, Stockport Council

Send message

Total Posts: 88

Joined: 17 June 2010

I agree with Tom. 
However note client will not be paid any ESA while she is challenging the new decision.

1964
forum member

Deputy Manager, Reading Community Welfare Rights Unit

Send message

Total Posts: 1711

Joined: 16 June 2010

I’d have a try at getting the tribunal decision set aside in tandem with the new claim however. Obviously request the SOR but worth a go at getting the decision set aside too especially if you have any other evidence not available to the tribunal that could have changed the outcome had client understood the need to submit it. Was there any confusion on her part as to where the appeal would be held if she requested an oral hearing? People often assume the hearing will be in Bradford or Birmingham due to the addresses on SSCS1/correspondence and as your client has a learning difficulty this could have been even more of a factor.

SALee93
forum member

South Tyneside Homes

Send message

Total Posts: 5

Joined: 7 January 2016

We requested a SOR, and it shows clearly that the tribunal had adjourned written to the clt asking her if she’d attend, even if they did think it was Bradford they had to go to it would be difficult to challenge them. In reading the SOR the decision they reached is 100% correct on the information the tribunal had in the papers they could only come to the conclusion they did, as per a really bad HCP report.

My plan was to appeal as Tom suggested, but started overthinking things, so thought I’d ask for the assistance.

ClairemHodgson
forum member

Solicitor, SC Law, Harrow

Send message

Total Posts: 1221

Joined: 13 April 2016

The clt has learning difficulties and didn’t understand the importance of a face to face hearing or the need to provide further evidence to tribunal to dispute the HCP report.

just thinking out loud, really, but these points occur

capacity springs to mind… does your client have it? can she manage her affairs (or rather, this particular affair) or should she, in fact, have an appointee?

might be worth asking mother to get the gp notes and perhaps asking (depending on your client’s age) about whether there were any special provisions in place during education…...

1964
forum member

Deputy Manager, Reading Community Welfare Rights Unit

Send message

Total Posts: 1711

Joined: 16 June 2010

Was she receiving any assistance with her affairs SAlee? Just wondered what (if anything) she did when she received the adjournment notice following the original paper hearing. How did she ultimately find her way to you? Was she referred/signposted in or did she come to see you off her own bat? What support, in other words, does she receive and how effective is it?

Just thinking that if you can demonstrate that she would not have had the capacity to understand the adjournment notice/how important it was for her to attend the hearing it might still be possible for you to pursuade the Judge to set aside the decision.