ESA appeal tribunal casting doubt on eligabilty to DLA
A colleague of mine had a recent Employment Support Allowance appeal which was refused, however at the time of the appeal she was in receipt of Disability Living Allowance High Rate Mobility & Low Rate Care. At the hearing the Tribunal came to the opinion that not only was she not entitled to ESA but also she was not entitled to the DLA award, they went so far to note the following on the ESA Tribunal Decision notice ‘The Tribunal noted that she is in receipt of high rate mobility from 14.12.09 to 13.12.11 (and lower rate care for meal for the same period) but on her evidence today and from the tribunal’s own observation it did not appear that she is virtually unable to walk’.
From this is seems apparent that as soon as Jobcentreplus receive the appeal notification they will pass a copy onto the Disability Benefits Unit, the result being that her DLA award may be superseeded. We have asked for a Set Aside in the interest of natural justice and requested a copy of the Statement of Reasons & Record of Proceedings..
Our concern is can a Tribunal cast doubt formally on someone’s entitlement to another benefit in this way, as it was not the matter or benefit under consideration, and without the information on which the eligibility to that benefit (DLA) was assessed by.
Would be interested in if anyone one else have experienced a similar experience, whether the Tribunal would be seen as legally able to list this comment in the way they did and if so what would be suggested we do to assist our client.
This happened to a client of mine in Sutton. The chair made a comment that as the client could not ‘prove it’ that she could look at it and decided that not entitled HRM as a matter of fact.
We sought leave to appeal with one ground being that as it was an ESA appeal the client would not as a matter of course have her DLA papers with her and so the judge if thought it was such an issue to warrant mentioning it in the DN and SOR should have adjourned to allow us to provide.
Got to the UT and the UT judge set it aside on another ground and said he need not on that basis comment on the DLA issue, which was nice of him.
Thanks ‘Roecab’ for the reply, it appears to clarify the situation, depending on how prevalent this type of situation may become, seems reasonable to warn clients beforehand of possible implications to their entitlement on other benefits of similar nature.
The issue in ours was all the more annoying as the DLA has been re-awarded in the month before the hearing based on an EMP report so as you say had they wanted to they could have got that detail. In this case the client also after losing the appeal lodged a new claim to ESA which was awarded as client deemed to satisfy the LCWA and placed in the support group. Anyway just goes to show that there are times when tribunals seem to do what the hell they like but of course we don’t get funded to attend to avoid the then further appeals new claims.
All the best.
But if a Tribunal simply decides on an ESA appeal that they do not accept the claimant’s ability to walk is so limited as to score them any points on the WCA, you cannot prevent an ESA decision maker referring the matter to the PDCS.
I don’t think anyone is saying that it shouldn’t or couldn’t be referred to the PCDS but the issue is that if you have a DLA award of say higher rate of the mobility component and then find not entitled can you do so without considering the evidence that award of DLA is based on? In CIB 2495 2009 it was found to be an error of law if Tribunal dismissing relevance to PCA of existing DLA award without enquiry into it in error of law if DLA award could have evidential value
I don’t think that, as a matter of law, an opinion voiced by any court on a question which is not before it can be said to be factual evidence. It is opinion and opinions can vary on exactly the same factual evidence. There is case law that a different medical opinion on a person whose condition hasn’t changed is not in itself a change of circumstances. It was for that reason that the law on revision and supersession of decisions in incapacity for work cases was changed, to allow the decision to be revised or superseded purely on the basis of a new medical report, which under the previous law required either a change of circumstances or ignorance of a material fact. A medical report is pure opinion, if any conclusions are drawn from it.
We know that already JCP and PDCS share evidence about disabilities and reports relating to one benefit are used as part of the evidence (too often, the only evidence) for the other.
Meanwhile, I offer you this thought: in giving a statement of reasons for the decision, a Tribunal must deal with all the evidence and explain why they favoured one peice over another. That an IB/ESA claimant is in receipt of the higher rate of the mobility component of DLA is a piece of factual evidence, which implies something about the ability to walk of the appellant. If the Tribunal failed to deal with this piece of evidence, and to explain why, knowing that the claimant is in receipt of HRM, they still found that his walking ability was significantly greater than is consistent with the award, the decision would be flawed and would be very easy to get set aside on application for leave to appeal.
Many judges prefer to give a short summary of the reasons for the decision, rather than a bald decision or formulaic reason (“the Tribunal preferred the view of Dr X because he is independent/knows the appellant”) in the hope that a brief explanation may forestall a request for a written reason. I’m not saying that a Tribunal ought to consider asking the DM to refer the case on; but if it was a factor in the decison they not only can but should mention it.
As the original post was on a tribunal on an ESA appeal wandering into DLA entitlement I offer the following.
Of course it is true that tribunals are entirely free to form opinions on the factual evidence before them which might lead to inferences being drawn across a whole range of matters. However, tribunals should tread vey carefully. They are not courts trying criminal cases where very serious matters concerning serious wrongdoing or potential harm to members of the public/property/national security might arise and a court would have an overriding duty to alert the authorities concerning matters arising in proceedings before it.
Unless fraud or serious wrongdoing is an issue tribunals should confine themselves to the instant matter before them and make findings of fact on the issues arising in relation to the benefit under appeal. Tribunals are not the DWP’s bodyguard. A tribunal on an ESA/ICB appeal is not being asked whether a claimant is virtually unable to walk and it should be very slow to wander into that territory when that issue is not before them and claimants have not prepared argument on the point or gathered evidence on it. If a claimant scores no or few points for walking then this will be evident from the decision notice. It is then up to the DWP to be alert to this from its copy and can then have another look at the DLA award. If the Department is not so alert then tough. Apart from deciding whether the decision under appeal is correct or not it is not for a tribunal to do the Department’s job. Stick to the matters in hand.
I guess we all have shared experience of tribunals in one benefit “mysteriously” creating action in another benefit claim…examples are widespread (HB and IS on capital issues springs to mind even when the criteria/limits were different for each). In some cases this is certainly a proper approach…however, those matters are related to “facts” rather than opinion.
IB/ESA and DLA are no strangers to this kind of synergy where the Department takes hold of evidence from one case to use in another…this post demonstrates that tribunals appear to be capable of straying into territory upon which they are not directly asked to judge. The difference here is that the tribunal’s comment is not a finding of fact related to the question of DLA - it is an opinion born of findings of fact to do with ESA.
Others have eloquently discussed the prerogative of the Tribunal in making comment or findings on such issues.
I - for my part - agree with the last post…Tribunals should be cautious in doing this…not least because in the instant example here, the question of “mobility” (VUTW) and ICB/ESA discomfort/sdistance could be clearly and closely linked in an evidential chain…. BUT ARE BY NO MEANS THE SAME TEST AT ALL…time, manner and speed are not considered AT ALL in PCA/WCA decisions…any tribunal which did comment in the manner described here (or a DM acting on it for that mater) would have to show it had considered those aspects of VUTW…not simply that it had considered the issue of distance and severe discomfort.
I would certainly look to challenge this kind of thing at every opportunity
I had a potentially similar circumstance with an ESA appeal, but the judge adjourned to request the DLA decision and evidence giving me the warning about the DLA award (HRM). Ulimately they used the consultants evidence for the DLA to award 15 points for walking for the ESA appeal, so we won and the DLA award was saved. I am very cautious about disclosing DLA awards at IB/ESA appeals unless the medical evidence it watertight and i know the client definately still meets the DLA criteria and they are not likely to talk themselves out of it!