Forum Home → Discussion → Decision making and appeals → Thread
Unlinking of appeals
One of our clients has appealed both decisions refusing ESA and DLA (where the evidence includes the LCWA report). In July last year Directions were issued that the two appeals should be heard consecutively and separately within the same session list. Directions were most specific about the composition of the panels, but stated that the Disability panel member will sit in on the ESA hearing but will do so only as an observer, playing no role in the ESA hearing or decision making process.
This week we received notification of hearing, but only for the ESA appeal. When we queried this with the Tribunals Service we were informed that ALL such cases had been unlinked, and that this was the result of an Upper Tribunal decision. TS was unable to provide further detail, but a little research uncovered MB & others v SSWP (ESA and DLA) [2013] UKUT 0111 (AAC); CDLA/333/2011
http://www.osscsc.gov.uk/judgmentfiles/j3742/CDLA 0333 2011-00.doc
I now have two questions:
1) are the Directions issued previously compatible with MB & others?
2) is it in order for the appeals to be heard separately, in the absence of new Directions to that effect?
Hi,
That link will not open for some reason and a search has not resulted in anything similar to the case you have mentioned.
My understanding of these linked appeals is that where the DLA relies on the ESA, the ESA appeal should be heard first. As long as the Disability member does not take part in the proceedings, PJ v SSWP (ESA) [2011] UKUT 224 (AAC) appears to suggest your scenario and therefore the directions given would be OK.
In practice, unless the case is weighted very heavily in the claimant’s favour, I have always opted to request the appeals are unlinked in these cases on the grounds that the claimant cannot possibly receive a fair hearing from the newly constituted tribunal since they have already formed a view following the ESA appeal.
Further, even where the appeals were never linked, if a listed member for a 2nd hearing has sat on a recent unfavourable appeal hearing, I request an adjournment on the same grounds. To date, neither have been refused.
I’d be interested to see the case you mentioned though as it may set out new considerations. If you have the link, please could you try to repost? Thanks.
Here’s another link to CDLA/333/2011 -
I am getting unlinked appeals but have had a DLA Appeal before an ESA one (separated by 3 weeks) where the client has just lost his DLA appeal because the ESA medical is being heavily relied upon as to how he was at that time. The ESA medical was on 13th July 2012 and the DLA claim was made on 25th September as he was getting worse. I have asked for a statement of reasons.