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

Contradictory Tribunal Decision

EPC
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Welfare Benefits Adviser, Lambeth Council, London

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Appeal sought/argued ESA support group for client who had been refused completely by DWP.
At hearing client unable to attend due to his MH situation (also has significant physical problems) and inability to cope. Evidence put to tribunal of his lack of insight into his MH and inability to acknowledge that he has serious MH problems.
After consideration tribuanl verbally notified adviser that the appeal had been allowed. Assumption made that this referred to support group.
Written decision now recieved and states “...with work related activity component.”
OK, so never clarified at hearing BUT stay with me…
written decision goes on to say
- LCW and s.29 applies
- no LCWRA as s.35 does not apply.
Next paragaraph states:
“However if he were found capable of work or work related this would result in a substantial risk of his mental health deteriorating.”
Now the inclusion of the words “or work related” may be a typo but it adds some doubt to the decision that he is in the WRAG.
What is the appropriate way to take this forward? Contact the clerk and seek another written decision with correction?

1964
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Deputy Manager, Reading Community Welfare Rights Unit

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I think that’s what I’d do in the first instance. It does sound likely that it’s a recording error doesn’t it? Probably using a template pro-forma and clicked on the wrong bit or something. I think I’d include a bit in my letter in which I’d ask for the SOR if it proves that the FTT meant to not place client in SG.

Ruth_T
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That’s interesting, because for the first time ever (and I’ve been representing at appeals since 1988)  we’ve also had a contradictory Decision Notice, issued last month.  This stated that the LCWA appeal was allowed, but when we added up the points for the descriptors awarded they came to less than 15.

I also suspect the Blue Peter School of Decision Notices, not helped by an inexperienced clerk parachuted in from the Courts Service.  However, isn’t the Judge supposed to check the DN before signing it?

I wrote to the TS requesting clarification and correction of any accidental error.  When I chased this up this week I was informed that the letter had been sent to the District Judge who had forwarded it to the tribunal Judge who signed the DN, for correction.    Meanwhile, we have a client with significant MH problems getting more anxious by the day, and worried stiff he may have to go through another oral hearing.

EPC
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Ruth_T - 22 October 2015 07:44 PM

I also suspect the Blue Peter School of Decision Notices, not helped by an inexperienced clerk parachuted in from the Courts Service.

I suspect this is the case.

I would be interesting to hear what happens with your case which is truely contradictory. Mine seems more like a typing error.

Will request corrected decision notice and SoR as very interested to see what their reasoning was. My colleague really believed the panel had accepted her evidence and was very surprised when the written notice was received. She felt the decision had been changed.
What is interesting is that their was an observer/reviewer present who was looking/monitoring at the workings of the panel - has anyone come across this before?

Edmund Shepherd
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I had a case in which 10 points were awarded under the mobility activities for PIP and yet the decision notice stated that the appellant was not entitled to standard rate mobility because 10 points was insufficient to meet the threshold.

I’ve seen obeservers/monitors at hearings before. I’m not quite sure of their function, but they didn’t do anything that appeared to take any part in the process.

JFSelby
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Must be the month for it

I had a client who was told one thing at the hearing he simplified it as asucess but told the decision notice would be sent out

decision notice said something else ( not a success)

I wrote for FWR ( still waiting) quoting word for word what the client thought the judge had said

On the observers   yes have seen them and usually the judge will say who they are ( for the client ) and most are new judges or being reviewed and on one occasion someone who was looking at travel expeses and the number who claimed

Mike Hughes
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Been told at Manchester that an upturn in PIP appeals (I am shocked!) means clerks are being ejected from the Court Service back into the Tribunals Service so there is at least that to look forward to, although no doubt many will have been deskilled along the way. 

Observers - it’s theoretically a public hearing although I recall TS trying to twist that some time back into there being a need to ask for permission to attend on the back of the nature of some venue rooms. Can be there for many, many reasons. DQTMs, medical professionals and judges all subject to performance management and no doubt all the joy that entails. Clerks were also monitored, although I’ll take some convincing there’s anyone left to do that. It would be good practice to be told who is in attendance when the numbers are low but it’s not always necessary. There’s an element of judgement required.

I have noticed a downturn in the number of summary decisions which appear to have been rigorously checked. I totally associate this with the number of CS clerks brought in who have not been trained to do the basics. Had a couple of decisions where we’ve been in the waiting area checking it through ourselves where a FT judge has rushed out; grabbed it back and gone in to get it amended. On 1 occasion it happened 3 times and the judge finally did it themselves. Now, there’s a model for the future…

Jon (CANY)
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It could even be trainee reps observing? When I first started doing appeals a few years ago I went along to a few hearings just to observe what happens. I rang beforehand to check it would be ok, though when I turned up the clerk still said he had to get the permission of the judge for me to sit at the back (this was way after the 2008 rules came in).

There’s some discussion of whether FTTs are truly public hearings, as the law requires, in CSE/912/2013. The minimum requirement is supposedly that they are “convened in publicly recognised tribunal buildings within reasonable office hours”, with “no deliberate plan to thwart the attendance of the public and/or of the media”.

Ruth_T
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Further to post #2, we finally have a corrected decision on our client’s appeal:  relevant activities and descriptors now properly identified and score correctly added up.  Result:  appeal allowed.  And it only took just over nine weeks from hearing date!

EPC
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We now have the corrected decision from the TS - he is in the support group.

We really thought it was WRAG with a typo.

Judge also apologised for “the distress caused by this lack of clarity”.