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ESA - Appeals Part 12 (Read 73 times)
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ESA - Appeals Part 12
23.08.12 at 18:42:17

The judge’s introduction
The judge will introduce themselves and the medical member. Note the doctor’s name, if possible, in case you wish to address them directly. The judge will explain that they are not part of the DWP and that they are here to consider the matter afresh.
Rules of evidence and procedure.
Tribunal Chairs run hearings pretty much as they choose. There are no rules of evidence at a tribunal and very little in the way of procedure. So, for example:
-      No oath to tell the truth is sworn – although you can be asked to at the judge’s discretion
-      Evidence is given sitting down.
-      You can be asked leading questions.
-       ‘Hearsay’ evidence is permitted.
-      Documents can be submitted without the other side having seen them in advance.
-      Witnesses are not generally asked to wait outside and then called to give evidence – though they can be, at the judge’s discretion.
Starting out: chronology of the case and the current award.
The tribunal will often begin proceedings by recapping what has happened: whether you are currently getting ESA; when the decision that is being appealed was made and what that decision was. It’s useful if you have these basic facts to hand, which you can usually find at the beginning of the bundle, after the schedule (index).
Giving evidence at the hearing
The tribunal can question you in any way it wishes. Generally the judge will take the lead, asking questions about a particular issue and then asking the medical member if they have any further questions they wish to put.
Sometimes the judge will begin by asking you about a typical day, or they may ask in detail about what you did yesterday: what time you got up, when you dressed, whether you had problems washing and bathing etc. They may then ask about the day before and so on until they feel they have built up an accurate picture of how your condition affects you.
One potential problem with this line of questioning is that the tribunal are supposed to be looking at how your condition was at the date of the decision, not how it is now. If your condition varies, it may be that you are in a better patch at the moment and so your answers will not be an accurate reflection of your condition. If this is the case you will need to explain it to the tribunal.
This is particularly the case with ESA where there can be a delay of many months between a decision being made and an appeal being heard.
Dealing with silences
When asked questions you should try to answer them accurately, but as briefly and concisely as possible. Not only will this help the tribunal get through their business, but it can also help prevent them going off at a tangent because you have given more information than was needed.
If there is a long silence after your answer, you should try to avoid filling it just out of
politeness or nervousness: it’s quite likely that the judge is simply noting down what you’ve said before moving on. Watch the judge’s pen, if it’s still moving then there’s no need to speak – the judge will look up when they have finished and ask another question.
Difficult situations.
Most panels are polite and will give you time and help to put your case. Occasionally, however, this may not be the case. For example, they may display clear prejudice against your condition or show obvious inattention. They may hector or hurry you in a way that causes you distress.
They may talk amongst themselves or with a presenting officer about legal issues that you don’t understand. When things happen that you are unhappy about, you may be very reluctant to make any sort of protest in case it prejudices the tribunal against you. The problem with not objecting at the time is that if you later seek to rely on what you view as unfair behaviour as grounds for an appeal, it may count against you that you didn’t say anything at the time. Though the fact that you are an unrepresented claimant will count in your favour in this regard.
There are no right answers in these circumstances, but below are a few things you may wish to try.
Ask for the matter to be noted
When you ask for something to be noted in the record of proceedings you are telling the panel that you want an official record made. The tribunal will be aware that you may then use this record as the basis of a complaint against individual panel members or as grounds for an appeal if it prejudiced your case in some way. For example:
‘Ma’am, I respectfully request that it be noted in the record of proceedings that on the last five occasions on which I have attempted to speak I have been interrupted by the panel.’
‘Sir, I would ask it to be noted that the medical wing member is tipping his chair back onto two legs, twanging an elastic band between his teeth and appears not to be paying any attention at all to the proceedings’. (This did actually happen).
‘Sir, I would ask that it be noted in the record that you have just asked me if I am stupid as well as deaf’. (This also actually happened . . . at the same hearing).
Keep careful notes yourself
If something happens that you’re unhappy with, try to make brief notes at the time and more detailed ones immediately you get back into the waiting room. Any witnesses should also make notes immediately afterwards. If you do subsequently appeal or make a complaint, the fact that you have a contemporaneous record of what happened will increase the chances of success.
Ask for a brief adjournment
If you have someone with you, such as your partner, a brief adjournment will give you the opportunity to confer and decide how best to deal with an unexpected situation. For example, the tribunal may have asked if it would be a good idea to adjourn the hearing in order to obtain some additional piece of evidence that might help your case. Or you may have become so distressed that you are having difficulty giving evidence.
Withdrawing your appeal
There may be circumstances under which you wish to withdraw your appeal once the hearing has begun. This could happen where, for example, the tribunal gave a clear indication that it was considering taking away an existing award. However, since November 2008 the tribunal has the power to refuse to allow an appeal to be withdrawn orally at the hearing. (Appeals can still be withdrawn in writing prior to the hearing without anyone having the power to prevent the withdrawal).
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Re: ESA - Appeals Part 13
Reply #1 - 23.08.12 at 18:42:57
Closing statement from you.
We’ve already suggested you have a checklist of all the most important points and examples which you can cross off as they’re covered. If any didn’t get covered, or you’ve added additional ones during the hearing, raise them at the end. This shouldn’t be a problem as you should be asked by the judge if you have anything you want to add before they make their decision. But if the hearing has already overrun and the judge is in a rush to get shot of you, they may ask you to leave without inviting any final points. If this happens, you must be brave and insist:
“Sir, I do apologise, but there are some brief points that I think it’s important the tribunal should be aware of when coming to your decision”.
Paradoxically, it can be hardest to do this if the tribunal has been very pleasant and you feel sure they are going to find for you: the last thing you feel like doing is holding them up for longer and perhaps losing some of their goodwill. Don’t be fooled, the tribunal may have enormous sympathy for you yet still find against you, or they may just be very good at hiding their opinions. So, no matter how hard, make those points. Make them as briefly as you possibly can, but make them. Because if the tribunal find against you you’ll always wonder if it would have been different if you’d said all the things you thought important.
Waiting for the decision
Once the tribunal is satisfied that they have all the evidence they need, they will ask you and anyone else in the room to leave whilst they deliberate and reach their decision. Very rarely the judge may say that they are unable to reach a decision today because the matter is a complex one and tell you that a decision will be put in the post.
Waiting for the decision is probably the worst bit of the entire appeal process. One thing you can be certain of, however: there is no connection between the length of time the tribunal take to make a decision and whether it will be for or against you, so don’t bother speculating.
Getting the decision and the decision notice.
Sooner or later, it might be five minutes, it might be twenty minutes, the clerk will come and fetch you. You are shown back into the tribunal room where the panel sit in silence until you are seated. The judge will say something like:
“Ms Jones, we have allowed your appeal. You will receive employment and support allowance with the support component from April 27th 2011.”
You will be passed the decision notice and that’s it. If the decision is a good one give them a big smile and a quiet thank you. If it’s a bad one, look the judge in the eye, nod curtly and leave. You could ask the tribunal for a ‘full written decision’, but it may be better to wait. See the next section for more details.
Whatever you do, don’t have a go at the judge. It won’t do any good and, if you want to challenge the tribunal’s decision the first person you have to seek permission from is . . . the tribunal judge.
Appealing to the upper tribunal – the first step
If you are unhappy with a tribunal decision, then as soon as you have been given it you can say to the judge that you would like to have a full statement of reasons for the tribunal decision.
This is a complete record of the hearing which the judge writes and has sent to you. If you don’t do it at the hearing you can still write to the Tribunals Service within one month of the hearing and ask for a full written decision. In fact it’s a good idea to make the request in writing anyway, even if you did do it verbally, just in case it doesn’t get noted down.
You can also ask in the same letter to be provided with a copy of the judge’s contemporaneous notes. These are the notes that the judge took at the hearing and if there is a material disparity between what the notes say and what the statement says, this may provide grounds for appeal.
Some representatives prefer, in any case, to wait a few weeks to make the request rather than asking at the hearing. They consider that if you ask at the hearing the judge may be able to make a good job of writing up the proceedings from their notes. If, on the other hand, a few weeks have gone by the judge may find it harder to reconstruct the proceedings from handwritten notes and there may be a better chance of finding a point of law on which to appeal.
Asking for the full statement, which can take anything up to three months to arrive, does not commit you to anything. But if you do not have the full written decision you are not permitted to seek leave to appeal to the upper tribunal, so it’s worth keeping your options open by asking for a copy whilst you consider what to do.
The process of actually appealing to the upper tribunal is beyond the scope of this current guide, but we have set out the first steps in brief below. It is a lengthy and more complex procedure than an appeal hearing and it is helpful to have some legal knowledge, although there are claimants who have succeeded at the upper tribunal with no support at all. It would be wise, therefore to try to get help for you from a welfare rights worker as soon as you receive a copy of the full decision.
Appeals to the upper tribunal have to be based on points of law. In other words, you have to say more than that you disagree with the decision, you have to show that the tribunal: got the law wrong; got the facts wrong; failed to take account of relevant facts; behaved unfairly or hasn’t properly explained how it arrived at its decision.
Initially you have to ask the judge for permission to appeal to the upper tribunal and this must be done within one month of the date on which the full written decision was sent out. You can do this using form UT1 which can be downloaded from the former commissioner’s website at:
It’s worth using the form as it will tell you what needs to be included in your application. If the judge grants permission your appeal will then go forward. If the judge refuses permission, which they very often do without any explanation whatsoever, you can then apply directly to the upper tribunal for leave to appeal, using the same form UT1.
If permission is refused by a upper tribunal then, realistically, that’s the end of the process unless you are in a position to seek a judicial review.
If permission is granted, then both you and the DWP will be invited to make further submissions.
By this stage you really do need to have got help from a welfare rights worker, if at all possible. The client’s representative, or the client themselves if they don’t have one, may be invited to an oral hearing which can be held in London or Cardiff, or the case may be decided on the papers. If the upper tribunal judge finds in your favour they may either substitute a new decision of their own or, more commonly, send the matter back to be heard by a new tribunal with additional instructions about what should be considered.
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