What remedy?

A client who has 20 year history of alcohol and substance abuse linked with mental health issues found not to have limited capacity for work (0pts) by decision dates 25/08/09 appealed 07/10/09 appeal papers not issued until 27/08/10 and at subsequent interview client is unable to recall how he was a the time of decision. I feel that this client cannot have a fair hearing due to the delay which ESA accept is their fault but state that they cannot review the decision. What remedy can we seek at appeal if natural justice , article 6 arguments made to claim that client denied fair hearing by delay.

There’s an ‘equality of arms’ argument that also supports your ‘fair hearing’ argument.
http://www.rightsnet.org.uk/pdfs/SSLPA_Art_6_additional_2003.pdf

My advice is IF THERE IS A CASE ON THE FACTS not to rely on the technical arguments alone - make a submission based on contemporary evidence and try to relate it back to the date of decision. For example given the length of the history it may be arguable that if there is no evidence of any change since the date of decision the Tribunal can take evidence of how the client is affected now as ‘on the balance of probabilities’ it will be about the same as at the date of decision. Beware of your client saying things are much worse now - this doesn’t help! The tribunal can then take evidence of how it is now, and if they don’t qualify now then they wouldn’t have qualified then.

You may also be able to get evidence from GP, drugs&alcohol; workers or mental health workers either supporting ‘no change’ (a scrawled one liner on headed paper or an e-mail will do) or ideally giving evidence for descriptors that applied at the date of decision. The GP should have some idea as they have provided sick notes so must have seen the client. over that time.

On a positive note there is nothing to stop the claimant reapplying for ESA straight away if they lose the appeal as more than 6 months have passed since the determination that found them not to have LCW. That at least means they won’t have to sign on while you take the 1st tier decision to the Upper Tribunal!

Would have thought it would be worth arguing at the hearing that exceptional circs apply as well as looking for sufficient points via the descriptors. That would get around the difficulties of establishing which descriptors applied so long after the event.  Exceptional circs generally seems to be a good fall-back position where there is evidence of significant alcohol/substance abuse issues.