ESA appeals

I have an appeal to go from the WRAG to the Support Group. If the Tribunal hears or sees evidence that the award of the WRAC is not correct does it have the power to remove the award of the WRAC even though this is not the subject of the appeal?

Logic (and DLA caselaw) would seem to say that they should have that power (subject to the usual warnings about looking at an unappealed component) but if anyone has any legislation or caselaw on the point I would be very grateful.

I’m sure someone has raised this before but I can’t remember the answer, it must be the unaccustomed sunshine!

I’ve been struggling to find the legal authority for this, but yes they do have the power.  According to Disability Rights Handbook, p.62: “Note that when you appeal against a determination that you do not have a limited capability for work-related activity, the tribunal can look at the whole decision, including whether or not you also have a limited capability for work. Potentially you could lose your ESA.”  Does anyone know the legal basis for this?..

Domino - 01 August 2012 04:52 PM

I’ve been struggling to find the legal authority for this, but yes they do have the power.  According to Disability Rights Handbook, p.62: “Note that when you appeal against a determination that you do not have a limited capability for work-related activity, the tribunal can look at the whole decision, including whether or not you also have a limited capability for work. Potentially you could lose your ESA.”  Does anyone know the legal basis for this?..

I have to agree and the best overview of the legislation and case law I have is CDLA/3182/2009.

Thanks, I will add something suitable to my submission.

If the tribunal consider that wrac is an issue they should warn your client at the start of the hearing and give the option to withdraw the appeal. They should afford your client a short adjournment to discuss this with you before proceeding. Failure to provide this warning/option would be an error in law.