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ESA - Appeals Part 9 (Read 54 times)
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ESA - Appeals Part 9
23.08.12 at 18:38:40
Using upper tribunal judgesí (Commissionersí) decisions
From November 2008 Social Security Commissioners are part of the Upper Tribunal, with ordinary tribunals now know as First Tier Tribunals. New decisions are now upper tribunal decisions rather than commissioners decisions. Decisions made in the past are still likely to be called commissioners decisions, however, but to make life simpler we will just refer to all such decisions as upper tribunal decisions.
Itís entirely possible, and indeed usual, not to use upper tribunal decisions at all in the
course of putting your case to the tribunal. So donít worry if you have neither the time nor the inclination to get involved with looking for relevant upper tribunal decisions.  
On the other hand, they can be useful and you donít need to be a lawyer to understand them, so itís worth knowing a little bit about how they work.
But do bear in mind that in relation to the work capability assessment (WCA), and particularly in relation to mental health, it will be some years before there is a large body of decisions to refer to. Some of the decisions made about the personal capability assessment for incapacity benefit may apply equally to the WCA where the wording of descriptors is the same or very similar. But in many cases, we will have to wait many months, or even years, before we know what views judges take about the WCA descriptors.
If you lose an appeal against a benefits decision, you may be able to appeal further to the upper tribunal. Upper tribunal judges can overturn an appeal tribunal's decision and their decisions are binding on all tribunals. So, for example, if an upper tribunal judge rules in a particular case that a tribunal should have taken into account the claimantís breathlessness when deciding how far he could walk without severe discomfort, then all future tribunals will have to take breathlessness into account.
Unfortunately, upper tribunal decisions are not binding on other upper tribunal judges. So itís entirely possible for another upper tribunal judge to find exactly the opposite and for yet more upper tribunal judges to then step in and take sides in a kind of judgeís playground fight. Tribunals must then choose which decision they are going to follow.
Sometimes a gang of three upper tribunal judges will get together to decide a particularly contentious issue. Their decisions are binding on all upper tribunal judges, which prevents any further gang warfare.
Decisions of Northern Irish upper tribunal judges are not binding on mainland tribunals, although they are persuasive.
Submitting upper tribunal decisions
If you wish to draw the tribunalís attention to an upper tribunal decision, the simplest way is to turn up on the day with four full copies of the decision, with the passages you consider relevant highlighted with a highlighter pen. If the decision is a reported one the tribunal will have copies available to them, so you can just refer to the relevant paragraphs in the course of the hearing. (Though I still prefer to take highlighted copies along).
If you refer to a decision in a written submission, you should enclose a copy with the
submission, unless it is a reported decision, in which case you need only quote the
relevant section(s).
But do make sure you read the whole decision before submitting it. You may find that
although one part is supportive of your case, another part could be very damaging.  
Also, avoid submitting great piles of decisions: if you do it on the day, the hearing may be postponed because the panel donít have time to look at them all and even if you do it weeks beforehand youíre likely to irritate and confuse the panel. Stick to one or two of the most relevant decisions if you use any at all.
Where to find upper tribunal decisions
Benefits and Work www.benefitsandwork.co.uk
The free access section of the site includes the fully searchable text of hundreds of upper tribunal/commissionersí decisions.
Disability Alliance www.disabilityalliance.org
The free, downloadable Digests of Commissioner's decisions on Disability Alliance's site are excellent, though by no means exhaustive, resources, which appear to be kept
updated. One digest covers DLA and AA decisions and the other relates to incapacity for work. Both are available in word or .pdf format. They are a very useful starting point for anyone trying to find out if there has been a decision relating to a particular aspect of their claim.
Office of the social security Commissioners www.osscsc.gov.uk
What used to be the social security commissioners' site has a keyword based upper
tribunal/commissioners decision search facility.
Department for Social Development of Northern Ireland www.dsdni.gov.uk
DSDNI is Northern Ireland's equivalent of the Department for Work and Pensions. The benefits law index page contains links to a range of legal resources, including:
the Northern Ireland Digest of Case Law which contains full copies in Word format of all NI Commissioners' decisions since the year 2000 and many of the most important
Commissioners decisions from preceding years.
Department for Work and Pensions www.dwp.gov.uk/
The Information for professionals and advisers section of the Resource centre contains links to a wide variety of guides, manuals and legal texts, including: full texts of all reported Commissioners decisions from 1991 to March 2002, available in a
set of downloadable .pdf files; Neligan's Digest, a downloadable volume which contains digests of Commissioners' decisions (but not full texts) that the DWP considers important.
Rightsnet www.rightsnet.org uk/
The most comprehensive collection of commissioners/upper tribunal decisions on the web, but you do have to pay a subscription to access them.
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