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Brain is too dead for a title!
Me again, sorry this is very long winded but would be grateful for some ideas/input?
Client was receiving ESA (CB). Following medical he was refused. Decision was made 10/11/2010.
Client appealed against the decision and was advised by the Job Centre to make a claim for JSA. He was not advised of his right to continue ESA (CB) at the assessment rate till the outcome of his appeal.
JSA claim was made. JSA (CB) stopped after 6 months. Client was not entitled to Income Based JSA because of wife’s income. Client has not received any benefits since.
Client requested a paper hearing. However, it appears from the SWR’s (which the tribunal sent to the client following the hearing, without request) that they requested he attend an oral hearing on 7th March 2012. The Tribunal say the client declined. Client has no recollection of this. Anyway the appeal has been disallowed.
It appears the Tribunal could only make a decision based on the papers and would have probably made a decision in the clients favour if he had attended (reading between the lines).
I know he could appeal the Tribunal’s decision on a point of law but this would take so long. Only income coming into the household is his wife’s which is being eaten up by mortgage etc.
If I advise client to make a new claim for ESA, would linking rules apply for CB ESA?
Client has cancer and is really ill and has been receiving chemotherapy on and off since 2010.
To confuse matters more a further hearing took place on the 13thMarch 2012 in connection to DLA, which the client did attend. It was adjourned the decision notice states ‘appellant not ready to proceed’. I have advised client he must attend the next hearing in April.
I would be grateful for any comments.
[ Edited: 29 May 2012 at 05:53 pm by CAH-Adviser ]I’d try for a set aside. Client is ill, confused, has been pushed from pillar to post, has only now found specialist advice, outcome could have been different if he had been properly prepared and represented, he didn’t recieve the date (or confused the DLA date with the ESA appeal and turned up on the wrong day) etc, etc. It’d be much quicker than requesting SOR, etc, and would stand a reasonable chance of success I would think.
I’d try for a set aside. Client is ill, confused, has been pushed from pillar to post, has only now found specialist advice, outcome could have been different if he had been properly prepared and represented, he didn’t recieve the date (or confused the DLA date with the ESA appeal and turned up on the wrong day) etc, etc. It’d be much quicker than requesting SOR, etc, and would stand a reasonable chance of success I would think.
Ah thanks 1964,
So this would be a letter to the Tribunal Judge that dealt with the case? Does this take long?
My client’s new DLA hearing is on 18th April. Do you think we will get the case set aside before then? If I could get the decision set aside in time do you think we could get both hearings heard together?
Sorry for the many questions but my mind is buzzing with this case and really want to do my best to get this guy’s benefits reinstated.
Thanks for your input
No prob!
Yes, letter to TS requesting set aside. In my experience, they usually deal with set aside requests fairly quickly (much more quickly than requests for SORs) but it will probably be a few weeks at least before you recieve a response and I suspect it is unlikely that you will have a decision prior to the date of the DLA appeal.
In any case, it’s unlikely they would hear the two appeals together- see recent thread and caselaw (sorry, can’t do links!)
No prob!
Yes, letter to TS requesting set aside. In my experience, they usually deal with set aside requests fairly quickly (much more quickly than requests for SORs) but it will probably be a few weeks at least before you recieve a response and I suspect it is unlikely that you will have a decision prior to the date of the DLA appeal.
In any case, it’s unlikely they would hear the two appeals together- see recent thread and caselaw (sorry, can’t do links!)
Great, thanks once again!
Hi with regards to the above matter.
I wrote to the T/S asking that they set aside the decision and gave reasons regarding the client’s health and confusion etc. I said that I felt it was in the interest of justice to do so and they have refused!
The T/S state that the request is not clear and they feel for me and the client’s medical history!! How patronising!
In my letter, I referred to the date of tribunal decision because that is the decision I want set aside? Is that correct?
However, the decision states that the Tribunal were looking at the decision dated 10/11/2010 (which is the DWP’s decision) and are confined to the circumstances up to that date. (Well I know that!) Apparently there is no identifiable procedural error in the decision making process?
I thought you could request a decision be set aside if it is felt that it is in the interest of justice to do so? I felt this was the case because of the client’s ill health and confusion. He did not have the opportunity to attend an oral hearing, which is unfair.
I do not have much experience (in fact none at all). Is the judge just being awkward? Really do not know where to go from here?
Any advice would really be appreciated.
On a side note:
If your client was to supply medical certificates for the period from when cJSA stopped up until the date the appeal was dismissed, am I right in thinking that the DWP would then need to pay cESA for that whole period (without him ever having needed to make a claim)?
Worth a try (as well as challenging the FtT decision of course…).
Martin
Sorry…. and the next issue is: if you have been refused an in-time application for a set-aside, then you have one month from when that letter was sent to you, in order to apply for permission to appeal to the Upper Tribunal.
It seems you already have the statement of reasons, so you are all ready to go on making that application…
Our specialist support service would be happy to have a look at the papers and consider what could be said in a permission application. See here for details of how to contact us: http://www.cpag.org.uk/content/specialist-support-service (while the service still exists).
Thank you all for your input.
Jan – yes I have received the decision, it just states what I previously said that the Tribunal were looking at the decision dated 10/11/2010 (which is the DWP’s decision) and are confined to the circumstances up to that date and there is no identifiable procedural error in the decision making process.
Martin – Client has continued to submit medical certificates throughout. I have written to the DWP twice now requesting they reinstate the clients ESA entitlement (CB) until the outcome of his appeal (this is when the appeal was outstanding). However, my letters have been ignored!!
But your right I will plug away and maybe write to the complaints team now, especially as the set aside has failed. I forgot about your team, thank you for reminding me. I will use as you have been very helpful in the past, thanks once again.
Just a question, was your client on chemo when original decision made?
Just a question, was your client on chemo when original decision made?
Cl had chemo in 2008 and then went on to have further extensive chemo in Feb 2009 for 7 months. He completed an ESA50 in August 2010. Cancer returned in Nov 2011 and he is currently undergoing another 7 months chemo.
He has been really unwell throughout, this is one of those frustrating cases where i am up against all the red tape!! Its the same with his DLA appeal. So many mistakes have been made by the JCP and T/S, it’s crazy!