God Morning all...

I have my first ESA appeal today. Client has the Submission Report. Do I have to challenge both the limited capability for work and limited capability for work related activity?

The DWP have decided the client does not pass the limited capability for work, however if at appeal the client is successful who then decides if the client should be placed in the limited capability for work related activity or support group? Is the decision down to the tribunal or does the DWP have to decide after the hearing?

Sorry this is probably a silly question – it’s early and I can’t get my head round it!!

It's the Tribunal - if there is a possibility of any LCWRA descriptor applying the Tribunal should be asked to consider it. One or two of the 15 point descriptors lead directly to the support group so if the Tribunal finds them it will have to put the appellant in the support group.

I suspect the tribunal would find it helpful to know whether the issue is actually in dispute or not.

At the one ESA appeal I have represented at I only asked the tribunal to look at limited capability for work, they did not make any comment about this and awarded this.

I assume that ESA is simmilar to DLA in that it is best not to ask for the higher rate if an award is not realistic as it undermines the credability. I also assume that is it is simmilar to DLA in that the tribunal could award you more than what you have asked for if you ask for too little.

Cheer’s guys,

It all makes sense now!!

Following the appointment I don’t think the LCWRA will apply, although I think the the ‘substantial risk’ rule will. So I will challenge on the grounds of both limited capability for work and substantial risk.

Thanks again.

I had my first ESA tribunal yesterday. Decision notice addressed both issues in two separate paragraphs almost like two decisions. LCW accepted but not LCWRA. I hadn't thought to address both in my submission but thankfully agreed with the outcome. I will address both in future submissions.
Just a thought though. If I had agreed with the first decsion but disagreed with the second can I appeal one without risking the other or are they technically two halves of one decision? It is an intersesting issue - they are both appealable decsions and maybe they should be like DLA decisions and resulting overpayment decisions in that they should be two separate appeals.

If you mean a scenario where your client is found to have LCW, and you appeal decision that client is not LCWRA, could the LCW decision be looked at again as well and risk losing the ESA, yes it could in theory similar to the DLA analogy .

Thu 05-Nov-09 09:13 AM by nevip

Decisions as to whether a person has limited capability for work or limited capability for work related activity are simply determinations in the outcome decision of whether a person is entitled to ESA or not. So if there is an error of law in the tribunal’s decision the decision falls and the determinations fall with it and the original DWP decision stands. So I would think long and hard before trying to appeal favourable tribunal decisions.

Oh dear...yes of course you would have to appeal to the commissioner…sorry Nevip you are totally correct…(its Friday take no notice of me). Couldn’t quite get what you meant when I first read your post…but yes I will definitely think twice about appealing further to a commissioner in ESA decisions.

It does seem quite unfair though, it sort of takes away the clients right to appeal on a point of law because if successful like you say the original DWP decision would stand…so you would have to be very confident on another tribunal finding in the clients favour.

And, bearing in mind, less than 10% are getting into the support group.

Yes, this is an interesting thought...

Like your client I don't feel my client would meet the descriptors under the LCWRA. However, what if you feel the client should pass the LCWRA and the tribunal don't?? It does make sense to treat the decision like that of a DLA decision, but surely if a tribunal have found that a client does have LCW and you appeal for LCWRA, would they really be able to change that decision…Hummm???

I think you would need pretty cast-iron reasons - clear, unambiguous evidence that the previous Tribunal had overlooked, or blatantly misconstrued, so that no reasonable Tribunal could possibly have arrived at that decision. You might then persuade the Upper Tribunal to revise the tribunal's decision in your client's favour.

If it's merely rather iffy they're more likely to set aside and who knows, the second Tribunal might be less sympathetic....

Not quite the same I know, but I did come across a case (DLA) where the Tribunal gave LRC/LRM and the appeallant, who thought she ought to have HRM/MRC sought leave to appeal. It was refused, and the Commissioner in refusing leave effectively said she was pretty damn lucky to have got anything at all and there could be no guarantee on rehearing she would!

I had recent case where Tribunal found appellant had limited capabilty for work under Reg 29 (risk if found not to have LCW) but did not look at all at whether she had linited capabilty for work related activity and made no reference to this in their decision. Afterwards I wrote to DWP with evidence and requested that the claimant be put in the support group. the DWP have just replied saying they cannot make that decision and suggest I ask for the tribunal decision to be set aside or appeal to the upper tribunal.

Surely if the question of LCW and LCWRA are separate determinations within the decision, the DWP can consider the LCWRA question if the tribunal didn't? Or did the Tribunal effectively place the appellant in the work-related activity group by not actively putting her in the support group? And how could I appeal the decision to the upper tribunal when the Statement of reasons would not refer to the LCWRA at all? or is that in itself an error of law?

The DWP do ask in their submission for the Tribunal to consider which group the appellant should be in, but do the Tribunal have to look at that question as it was not raised in the appeal? And could the claimant have appealed the LCWRA aspect if there was no determination on it and it was not therefore part of the decision under appeal?!

Any suggestions would be welcome

RW

Did you put in your submission whether you wanted the tribunal to consider limited capability for work related activity? Did the tribunal ask you about this?

In terms of the DWP changing the decision, I would have thought that this could only happen by them processing it as a change of circumstances which would mean that the increased award would not be backdated.

Thanks

In response to the DWP asking the tribunal to look at the group issue, we did set out why we thought claimant would meet the criteria for the support group. But the tribunal did not look at the various LCW descriptors at all, simply decided that Reg 29 applied and went no further. The claimant was very distressed at the hearing and I thought I'll sort the group out with the DWP afterwards - I did not think it would be a problem as the tribunal had not addressed the issue at all and it did not form part of their decision.

do you think then that by not considering LCWRA the tribunal had made a determination on the group issue, by default and it does form part of their decision?

rw have you asked for the statement of reasons from the tribunal yet?

I haven't, as trying to overturn the tribunal's decision is not really an option, the claimant certainly would not want a rehearing of the whole appeal and it is by no means certain that she would get into the support group anyway - the Reg 29 finding was based on the condition being life-threatening rather than risk (sorry I got it wrong in earlier post) so doesn't easily carry over to the LCWRA or Reg 35. It's also by no means certain that another tribunal would put the claimant in Reg 29.

in general terms though we would like to clarify the issue as we have had quite a few appeal hearings where the tribunal has not considered the support group issue at all, despite the DWP asking them to. If the LCWRA determination is indeed made by the tribunal 'by default' then we do need to be pushing tribunals to consider the question.

A tribunal need not consider anything not raised by the appeal. This is not limited to issues raised in the appeal application. However, when an issue is raised then a tribunal has a general duty to deal with it. Having said that a tribunal is also entitled to deal only with the case as put to it by the representative, particularly a more experienced one. However, caution must be exercised here.

If, for example, an extremely experienced (and known by the tribunal to be so experienced) raises an issue in written submission then does not raise it orally at the hearing after the tribunal do not raise it directly, then the tribunal might be entitled to conclude that the representative no longer wishes it considered. A tribunal in this position could still be on shaky ground though but might just get away with it depending on the facts of the case. I don’t think that they could get away with it with an inexperienced representative though.

Furthermore, depending on the nature of the case before it, the evidence taken, while although not directly on the support group descriptors, could have been such that it led the tribunal to conclude that no support group descriptor could have applied. However, I think that a tribunal might only get away with that if the issue was not raised directly before it.

It would all depend on the nature of each case. Whether a person was represented or not. Was the issue directly raised or not? I would think that, as a general rule for reasons of fairness, a tribunal should always give the appellant a chance to comment on an issue directly raised before it, unless the reasons for not doing so were compelling (very few and far between, if any), otherwise it risks falling into error and having it’s decision set aside on that ground alone.

Thanks for all the responses. I agree with you nevip on how the tribunal should approach the issue - i think i was thinking it could be dealt with as for overpayment cases where the recoverability issue is sometims decided and then the case is referred back to the DWP for any new calculations to be done, with the claimant able to bring the matter back before the tribunal if s/he disagreed with the amount. If the question of the group is indeed fixed at the appeal hearing regardless of whether the tribunal made findings on it, I will in future make sure the matter is dealt with by the tribunal if there is any possibility of the support group applying.