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Incapacity Decision Official Error?
I have Vietnamese client who hardly speaks any English and I have great diffculty advising her and taking instructions, even when using an interpretor
She failed a PCA in 2007 but did not appeal the decision. ( I was not involved at the time) She subsequenlty claimed ESA, and subsequently failed the limited capacity for work assessment, and I lost the Tribunal on 28 Jan 2011, butI asked for the statement of reasons on the day.
I may late in applying for leave to appeal to the Upper Tribunal , but only last week, her husnand provided me with a medical report that was accepted by a Tribunal hearing an IB appeal in 1997. That Tribuanal accepted that evidence as indicating a progressive neurological disease and exempted her from the PCA
I have included that evidence in my (late?) aplication for leave to appeal to the Upper Tribunal, but I have also faxed an application for an any time revision of the IB decision that was not appealed, the ground being officcial error in superseding on the basis of a PCA from which she was exempt
Has anyone had any success with a simliar application? How much mileage is there here?
I have Vietnamese client who hardly speaks any English and I have great diffculty advising her and taking instructions, even when using an interpretor
She failed a PCA in 2007 but did not appeal the decision. ( I was not involved at the time) She subsequenlty claimed ESA, and subsequently failed the limited capacity for work assessment, and I lost the Tribunal on 28 Jan 2011, butI asked for the statement of reasons on the day.
I may late in applying for leave to appeal to the Upper Tribunal , but only last week, her husnand provided me with a medical report that was accepted by a Tribunal hearing an IB appeal in 1997. That Tribuanal accepted that evidence as indicating a progressive neurological disease and exempted her from the PCA
I have included that evidence in my (late?) aplication for leave to appeal to the Upper Tribunal, but I have also faxed an application for an any time revision of the IB decision that was not appealed, the ground being officcial error in superseding on the basis of a PCA from which she was exempt
Has anyone had any success with a simliar application? How much mileage is there here?
Very little. The tribunal are unlikely to be held to have made an error of law by not considering evidence not put before them. You might be able to argue breach of natural justice due to difficulties in communication for the client, but it’s a long shot. If the tribunal had up to date medical evidence at their disposal, this is likely to be preferred to a 14 year old PCA anyway.
Under the circumstances, it may be wise to make a new claim immediately.
What about opening the whole decision of ICB and/or ESA using any time revision on official error grounds. decision & appeals Regs. reg 3(5)(a). If this evidence was before the DWP when she failed the PCa then there is an arguement to revisit the original decision