ESA appeal tactic

I am considering using a new (to me) tactic on a client’s ESA appeal and wondered if anyone had any experience of this. The Secretary of State’s submission does not include my client’s ESA50 as this was lost in transit between the medical professional and the decision maker. They admit to this in their submission. There is no reference to it in the submission other than stating that the medical professional had access to it when preparing their report, however, the report makes no reference to it.
I am considering submitting that the DM did not have access to the required information when making their decision, therefore cannot have made an informed decision and that the tribunal should find in favour of my client by default.
There is a side issue of them taking the appeal to reconsideration when this had not been requested and the powers to do so had not been implemented.
I was hoping that these two factors will demonstrate that the actions of the DWP have been demonstrably flawed in both the initial decision and their handling of the appeal process and that their submission should be rejected and the appeal upheld without the need for a hearing.
Anyone tried this or have any advice on this course of action?

Paul Higgs - 26 September 2013 11:53 AM

I am considering using a new (to me) tactic on a client’s ESA appeal and wondered if anyone had any experience of this. The Secretary of State’s submission does not include my client’s ESA50 as this was lost in transit between the medical professional and the decision maker. They admit to this in their submission. There is no reference to it in the submission other than stating that the medical professional had access to it when preparing their report, however, the report makes no reference to it.
I am considering submitting that the DM did not have access to the required information when making their decision, therefore cannot have made an informed decision and that the tribunal should find in favour of my client by default.
There is a side issue of them taking the appeal to reconsideration when this had not been requested and the powers to do so had not been implemented.
I was hoping that these two factors will demonstrate that the actions of the DWP have been demonstrably flawed in both the initial decision and their handling of the appeal process and that their submission should be rejected and the appeal upheld without the need for a hearing.
Anyone tried this or have any advice on this course of action?

was this decision in relation to a new claim or was it a review of an existing one?  the reason I ask is if its a new claim and you argue the decision is invalid and its accepted, you would only be putting them back at the start again with no financial gain.

in some cases that might be a tactic worth pursuing but if your client has a strong case then its maybe dragging out the time without the wrag component?

in terms of your argument I would say its a “facts of the case” issue.  in some cases a missing esa50 and other procedural problems might allow a tribunal to make such a decision but in most cases I would say they are going to “stand in the decision makers shoes” and go ahead with the appeal as usual.

Thanks for the feedback.

The case is a re-assessment for transfer from IB(IS) to ESA. It is not a particularly strong case, which is why I wanted to try this option. I appreciate the likelihood of the tribunal deciding to go ahead with the hearing, but thought it worth a try as the medical report is pretty flimsy, referring to observed behaviour that does not meet the figures cited in the descriptors, e.g. mobilising, standing and sitting.

Any other suggestions would be welcome.

If it’s a conversion case involving IB only and there’s not much chance of getting into the support group, and the client isn’t too bothered about waiting for WRAC arrears (or if he’s little chance of the tribunal awarding even the WRAC) then I think anything that could extend the life of the award of contributory ESA pending the tribunal would be a good thing.  Last time I looked it appeared the contributory ESA paid pending a conversion appeal couldn’t effectively be time-limited.  In this case you mention IS as well as IB so the argument’s not as applicable. 

I agree with Steven that the tribunal’s a re-hearing of the evidence so he’s not normally going to be prejudiced.  Might be different if client wanted a paper hearing in which case the ESA50 has more relevance.  Otherwise, he’d have a chance to deliver ESA50 type oral evidence on the day of the hearing.