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S2uABZ
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Money Adviser, Aberdeen City Council Financial Inclusion Team

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I have had an inquiry from a client who wishes to appeal to the Upper Tribunal after losing their ‘failure to attend’ appeal.
Their argument is that their ‘failure to attend’ was due to their medical condition and if their had been a GP on the panel they may have understand her health problems better.

Has anyone tried this argument before?

many thanks

     
Elliot Kent
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Which benefit is this?

If it’s PIP, then the Tribunal was improperly composed and the decision should be set aside - TC v SSWP (PIP) [2017] UKUT 335 (AAC).

If it’s ESA, then the Tribunal was correctly composed - CH v SSWP (ESA) [2017] UKUT 6 (AAC).

The reason for the disparity of treatment is that the relevant Practice Statement says that appeals concerning the “Work Capability Assessement” must be heard by a two member panel, PIP appeals must be heard by a three member panel and all other appeals must be heard by a Judge alone. The UT thinks that FTA appeals do not involve the WCA as such.

It is possible under the Practice Statement for a District Tribunal Judge to determine that a doctor is required if the “complexity of the medical issues in the appeal so demands”. (Para 7(b)).

In principle, I suppose it is possible to argue that the Tribunal erred in not identifying the appeal as potentially raising medical issues of this degree of complexity - but realistically, its a very high threshold to meet.

If the Judge has failed to understand the medical issues in the case, then there will probably be other errors to be found in the statement…

     
S2uABZ
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Money Adviser, Aberdeen City Council Financial Inclusion Team

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Thanks for that info, it was for ESA.

Worth a try then.

cheers

     
BC Welfare Rights
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The Brunswick Centre, Kirklees & Calderdale

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ESA failure to attend appeals are heard by a judge alone - see https://assets.publishing.service.gov.uk/media/588078ef40f0b65937000004/CE_2223_2016-00.pdf (CH v SSWP as posted by Elliot above)

or the final para of https://www.rightsnet.org.uk/welfare-rights/caselaw/item/appeals-for-failing-to-attend-a-medical-assessment-must-be-heard-by-a-judge

      [ Edited: 26 Jun 2018 at 01:35 pm by BC Welfare Rights ]