A tribunal decision can only be challenged by identifying one or more ‘errors of law’ in their statement of reasons, which the tribunal judge has to put together if any party to the appeal requests it.
Up to this point, you were able to challenge a decision simply because you thought it to be wrong. If you are unhappy with the tribunal’s decision, begin by requesting a statement of the tribunal’s reasons for their decision. In that letter/phone call/email, we recommend that you also request a copy of the judge’s ‘record of proceedings.
You need to make the request for these documents within the time limit of one month from the date that the Decision Notice was sent, or handed, to you by H M Courts & Tribunals Service.
Talk to me if you have missed that time limit as we may be able to help.
The tribunal that heard your ESA appeal is entitled to make what decision it wants, but it must arrive at that decision in a lawful manner. It cannot ignore the law or case law from the Upper Tribunal or higher courts, where it is relevant to your appeal.
Where this applies, or where you can show that the tribunal misunderstood the law, this will be an error of law. It is not just about the law though; where the statement of reasons shows that the tribunal ignored or overlooked evidence, or where they have misinterpreted evidence, or taken account of evidence that is not relevant, then this too will be an error of law.
In a statement of reasons, the judge will state what the tribunal found to be facts, and will give their reasons for awarding points, or not doing so, for each part of the ESA test that was relevant to your appeal.
Look at those findings of fact, because the tribunal must not take into account irrelevant facts if they are to avoid making an error of law. Reasons for a decision must be adequate, showing how the evidence that they read or heard lead them to the facts that they found, and why those facts lead them to apply the law as they did.
I find that there are usually errors of law to be found in a statement of reasons.
Put your application for permission to appeal to the Upper Tribunal in writing. Try to keep it concise and avoid the temptation to re-argue the evidence; at this stage, the focus is on matters of law, not facts. Your application is considered by a judge sitting alone and without a hearing. Do not be put off if that judge turns down your application for permission; it can be renewed directly to the Upper Tribunal, using the form UT1 that should be sent to you with a refusal decision. It is quite common for an Upper Tribunal judge to find an error of law, where the local judge refused. Another way of getting the tribunal’s decision undone, and for you to get another hearing is having the tribunal’s decision set aside on procedural grounds, but this will apply far less often.
Some clients come to me having been refused permission by the local judge, so that I come in for the application direct to the Upper Tribunal on the form UT1, which is also fine, although there is then just the one chance to establish an error of law. There is no effective appeal against a refusal of permission by the Upper Tribunal judge.
There are two sorts of ESA claims, contribution-based and income-related. Entitlement to the first of these depends on you having paid sufficient National Insurance contributions. Income-related is another way of saying means tested. In the following weeks, you will be required to complete a work capability questionnaire or form ESA50. This asks for a description..MORE
Whether you are claiming contribution-based or income-related ESA, the claim process is very likely to involve a face-to-face assessment. It is a good idea to ask for your work capability assessment to be recorded, to help protect you from what you say being misunderstood, but you should still not go alone if you can help it. You may well be asked how you got there..MORE
You would not be reading this if you were happy with your decision letter. OK, so what do you do when a decision that you do not agree with arrives? We recommend that you call ESA to request a copy of the assessment report, because this is very likely to be where things went wrong. We go through the report with you pretty much line by line, to see what went wrong..MORE
The first thing to remember is that I can almost certainly put it right, so do not panic. Challenging the ESA decision is a two-stage process; the first is a paper challenge, called a mandatory reconsideration. ‘Mandatory’ because you cannot go around it; you have to go through this stage before you have the option of appealing..MORE
You must have been through the reconsideration stage before you can appeal to an independent tribunal. It is better to use the standard appeal form (search online for form SSCS1. You and the tribunal have the same appeal papers sent to you. They will contain a copy of your work capability questionnaire ESA50, the assessment..MORE
ESA APPEAL CHALLENGE
A tribunal decision can only be challenged by identifying one or more ‘errors of law’ in their statement of reasons, which the tribunal judge has to put together if any party to the appeal requests it. Up to this point, you were able to challenge a decision simply because you thought it to be wrong. If you are unhappy..MORE
Are you in need of professional PIP or ESA legal help ?
Don't hesitate to contact Disability Claims.
As of April 2023 we have a 97.3% Tribunal success rate based on 678 appeals.
We hope to hear from you soon.
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“We were kept informed of the progress of the claim and the process we followed.
You obviously have good knowledge on the subject and was to formulate an
accurate statement, and present our case well at the appeal hearing. It is likely that
we will be in touch for help when our renewal form arrives.”
Mr M of Louth
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