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tribunal puts ESA appellants DLA in jeopardy !
cl appealing ESA WCA decision
after medical JC decided he no longer had LCW
continues to get DLA
at hearing tribunal decided that :
burden of proof on SoS, to prove that cl has improved so much that he no longer has LCW and therefore that the ESA award can be superceded.
SoS has not discharged burden, because cl continues to receive DLA, which is inconsistent
tribunal adjourned, with directions that SoS ( i.e. JC) explain their position
cl terrified he will now have DLA taken away, wants to apply to have direction notice altered
A worrying development - any suggestions on reasons why the directions should be changed?
my thoughts are :
I would agree that the SoS has not discharged the burden of proof, and is inconsistent in allowing DLA to continue. However, rather than allowing the respondent a chance to go away and put their house in order, I would have expected the tribunal to take the view that they had not made a prima facie case, and allow the appeal ( after taking evidence from the client).
Tribunal failed to take advantage of the clients attendance at the hearing, if given the chance he could have given evidence that would have persuaded the tribunal that he was incapable of work.
Tribunal giving unfair advantage to JC, they don’t deserve it because they didn’t attend hearing and idn’t explain adequately in SoS submission how it is possible for client to remain entitled to DLA whilst being found capable of work.
I have a suspicion that the judge is on a mission to sort out shoddy decision making and the Jobcentre’s lack of respect for the tribunal in not attending hearings, and that the client has become caught up in the crossfire
I too rep at hearings at the same venue as you and I am seeing this a lot, not just in relation to ESA but also LTAHAW and O’P cases.
Tribunal failed to take advantage of the clients attendance at the hearing, if given the chance…..
Whoa! Are you saying the client wasn’t allowed to speak?
Gareth - client says he wasn’t given the chance to give his evidence,
Chaos - you probably know which judge it is, have you succeeded in getting his directions altered?
I’m worried that the judge has apparently made some findings - in other words, part of what you describe looks like a final decision. But it can’t be, because the hearing has only been adjourned. I suppose s/he was only explaining the reasons for adjournment.
What this means is that there is no final decision for the DWP to get their hands on. The resumed hearing is most likely to be before a different tribnual who could take a totally different view of the whole case. Otherwise it will have to be both the same members. Has the judge debarred the memebers of the Tribunal from sitting on the case again, do you know? That may only be on the listing instructions given to the tribunal administration. To be on the safe side I would always direct “both or neither”.
It is however worrying that the tribunal ahs not expresed the obvious point that as ESA and DLA are for totally different purposes ther is not necessarily any inconsistency in one stopping but not the other. I do hope they know this.
Chaos - you probably know which judge it is, have you succeeded in getting his directions altered?
I would quite like to talk to you about this can you email me via Taunton CAB website with your contact info (address the email for the attention of LSC Welfare Benefit Supervisor). AC
my number is 01749 347131 (it’s already in the public domain), Jim