ESA & no reasonable prospect of success

Hello All,

Just curious to know if the rest of you are noticing an increase in Direction Notices from 1st tier Tribunal judges of ‘no reasonable prospects of success because the Appellant scored 0 points for the descriptors under the ESA Regulations’ then requesting in writing within 14 days that the Appellant shall comment as to why the Tribunal should not strike out their appeal? I have had 4 in two days and based on the ‘0 points’ scenario I am expecting a whole lot more!

Most of the cases I have taken (and won) have had 0 points….so I don’t see why having 0 points would suggest that there are no reasonable prospects of success on its own. But, personally, I harbour more cynical thoughts on this matter, such as an overwhelming backlog of appeals landing on the TS door mat!

This is creating a lot of extra paperwork and it is time consuming. I was under the impression that the GL24 gave a clue as to why the client was appealing and should myself or a collegue complete one we ensure that full reasons are given as to why we disagree and want to appeal,including the descriptors we feel are applicable, so has anyone out there have a standard response I can cut copy and paste and add the extra detail to please?

Thank you in advance

I’ve had one - was hoping it was just a one off…..but maybe not.

Not had any of these here.  Yet!  This is a complete waste of time and money and puts unnecessary stress on claimants.  We have an 80% strike rate with ESA appeals nearly all of which started off with no points, including a few won on exceptional circumstances grounds.  It is often not clear from the papers alone whether the case has merit or not.  Indeed, direct questioning of the claimant often elicits facts or assertions previously not in evidence.  How else, after all, do we as representatives decide whether our clients have a good enough case or not for us to represent on.

These kinds of directions should really be reserved for cases of ‘pure law’.  For example, a bloke once came to see me as he had appealed a Carers Allowance decision solely on the ground that he thought the statutory flat rate amount was too low.  Here it would be entirely appropriate to write and explain the law on this point and invite the claimant to advance any further argument or new ground.

In the last week we have also had a number of these.

Check with the Tribunal Service, because in at least one case we were told it was because the TAS1 enquiry form had not been returned. 

However, I also heard that Judges are pre-reading papers with ATOS staff present, which could be the real reason why there has been a sudden increase in the number of these direction notices. This being the case I would suggest that any standard response details the need for a oral hearing to make the appeal process fair and just. As only at an oral hearing can we be sure of no further input from ATOS.

“However, I also heard that Judges are pre-reading papers with ATOS staff present…”  If anyone has direct evidence of this they should raise it as a formal complaint to the President of The Administrative Justice and Tribunals Council as this is highly irregular and potentially prejudicial as a breach of the common law duty of fairness and of Article 6 (HRA) rights (the right to a fair hearing).

Atos are paid under contract by the DWP and they are not impartial as they have a vested financial interest in the continuation of that contract.  If a tribunal judge raises a particular issue from the evidence before him prior to the hearing he should direct Atos or a particular EMP to provide a written answer to a direction, or, summon an Atos representative to attend the hearing to give evidence in person.  Reading the evidence in the presence of an Atos representative in advance of the hearing without the appellant’s knowledge or without him having been given an opportunity to be present is outrageous and, in my view, unlawful.

It was Jobcentre Plus ESA processing staff that told me that Judges were going to start pre-reading with ATOS staff. I do need to check it out with our local Judges. Jobcentre Plus may have confused ATOS staff with Doctors who sit on the Tribunal panels.

My understanding is that a team of DMs are screening the appeals at the TS side of things.

My only experience is where decisions under appeal have been superseded and accordingly lapsed.

Maybe its a misunderstanding re ATOS staff? Perhaps they would work alongside DMs rather than judges?

Just back from an ESA tribunal which was allowed despite client being scored nil at the medical. After the hearing I got a chance to ask the Judge about this issue but he could not shed any light on the sudden increase in these direction notices.

However, the clerk confirmed that John Birks post is correct.

At the Leeds Tribunal offices there is a team of DM’s and someone from ATOS looking at appeal papers to see if they can revise the decision. A Judge is not present when this happening. 

But perhaps because some Judges know this is happening they have become more willing to issue these notices.

Whatever procedures are put in place to deal with the increasing number of appeals, Welfare Rights workers need to be prepared to continually argue for the need for oral hearings. As Nevip said “direct questions of the claimant often elicit facts or assertions previously not in evidence.”

But why is the question of revision only being looked at after an appeal is received by the Tribunals Service, and why is this happening at the TS premises?

Every appeal, on whatever issue, should automatically trigger a thorough review by JC+.  Revision in the claimant’s favour at that stage would lapse the appeal, eliminate the need to prepare an appeal submission and relieve TS of a whole load of work.

I can’t resist quoting the comment made by HH Judge Martin, regarding the reconsideration and appeals processes, in oral evidence to the Work and Pensions Committee Inquiry into Decision Making and Appeals:

” I think it is presented as a false choice to claimants who have received a refusal of their claim.  It is presented in terms of, ‘Would you like us to look at our decision again or would you like to appeal?’ Presented with that choice, most people unsurprisingly … opt for reconsideration.  Would you look at it again?  It seems to be quicker, and if you do appeal there is no suggestion that the Department will also look at the decision again. ... t might be better presented if it was expressed in terms of, ‘Would you like us to look at our decision again superficially or would you like us to look at our decision again seriously?’ … What is surprising to me is that if an appeal is lodged it is as though the Department then opts out of the process.”  [Work and Pensions Committee, Decision Making and Appeals HC 313 (2009-10) Memorandum by HH Judge Robert Martin DM27 Q72]