I had a client recently who came to see me a couple of weeks before her ESA tribunal (I didn’t rep her at the hearing, for reasons unconnected with the merits of the case) who was examined by an EMP for DLA (HR Mob) just a couple of weeks before the ESA medical. She was subsequently awarded HR Mob. I advised her to request a copy of the DLA EMP report to use in her appeal and that if it didn’t arrive before the hearing to request an adjournment on the day as the report would have real probative value for the appeal.
The report didn’t arrive before the hearing, the tribunal refused to adjourn and her appeal was dismissed. I drafted the application for permission to appeal which included the following paragraph:
“Given that the main issue in my ESA appeal was the limitation on my walking, I believe that the tribunal, out of fairness to me, should have adjourned the hearing and directed the DWP to produce a copy of the report as it had real probative value and would have assisted the tribunal in assessing my appeal more fairly and accurately”.
A district judge refused permission but the UT has now granted it. I’ll let you know the final decision. There is also case law on different facts. See attachment.
