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Appeal disallowed

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Hi there, Finding your forum is a relief in itself!

 

I dont know if anyone can help, suggest or point me in the right direction following my incapacity benefit being stopped.

 

Having put in for an appeal against the DWP decision to stop my benefit it was heard by a paper hearing on 07/12 AND yes the appeal was disallowed. I have emailed for a statement of reasons, also advising DWP of this, I received a letter today, advising me that from the assessment and decision to stop my benefit by being awarded only 6 points, they admit that this was an error and I have now been awarded another 6 points, but obviously still not enough to award incapacity benefit. My argument is that they are relying on the IB50 questionnaire completed in March, 17 days prior to my second surgery, and the ludicrious assessment from ATOS, which my Physiotherapist said was contradictory! I sent a letter from my Consultant, confirming my condition worsened since my operation and i am being reffered to a Neurologist and Rheumatologist, My physio also sent a letter confirming having seen me weekly since march, some tests were positive and clearly condition worsened. Yet my appeal was disallowed.

I have asked for a statement of reasons, and the fact that today since my request the DWP have agreed a further 6 points, my argument is that if they now admit to one error, maybe there is more???? the evidence they rely on is out of date and I feel somewhat prejudiced, particularly as the assessments arranged by the DWP is a GP, thats General Practice and not experience or knowledgable in my condition or any other poor IB Claimant. Yet my evidence were from specialised Professionals who have dealt with my condition for the last year.... yet this was overlooked.

 

As I said, Ive requested the statement of reasons, but Im not sure whether I can appeal as it may not be on point of law.... just a ludicrious and prejudiced system!!! Im going to take it as far as I can but any advice would be appreciated. oh, all this is done without representation, should I get some? and where? cost invovled, I dont receive any benefits since this stopped in October... my husband works, albeit 5.75 ph!!

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Hi, hopefully someone better than I will pass this way soon...

You don't mention how inpacitated you may be. That said, I would have thought that an appeal like this is always going to be better if the claimant shows up. That way you can answer questions the panel may have, add in bits that may not have occurred to you and generally present your case in the best light. Together with a benefit rights worker of some sort. A paper hearing cannot give a true flavour of you. Particularly as the way ATOS and DWP word things naturally works against you.

I'm sure there will be something you can appeal further on. They gave you 6 points. Then said oops that's an error have 12. Sounds a bit bizarre to me.

And yes, you do need advice and assistance. Find a local welfare rights worker or citizens advice bureaux. Appeals, these days, are not really a do-it-yourself activity.

Good luck.

Rae

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As I said, Ive requested the statement of reasons, but Im not sure whether I can appeal as it may not be on point of law.... just a ludicrious and prejudiced system!!! Im going to take it as far as I can but any advice would be appreciated.

 

If your issue is with the manner the system works, this would not be accepted by the upper tier as an appeal. It should be lodged via your MP as a complaint. The tribunal service exists to consider whether decisions have been made in accordance with the law, not whether the system is fair.

 

my argument is that if they now admit to one error, maybe there is more????
This would not be accepted by the upper tier either, as it's non specific. They won't accept an appeal on "if's" and "maybe's", however, if there are definately more errors that the first tier have made and you can detail specifics this may be accepted.

 

When you say they haven't considered evidence from your specialist, do you know this, or is this a presumption? If the first tier did not consider it at all, you may well have something, however not considering it isn't the same as considering it, but not agreeing that it fits the criteria required to qualify for the necessary points. Considering it and awarding a further 6 points as a result of it, but not awarding the benefit is not the same as overlooking it. Is the additional 6 points due to your specialist's evidence, or due to the ATOS assessment?

 

It's not a case of you have no appeal - that isn't what I am saying. Truth be told, there isn't enough information in your post for me to know whether your appeal would likely be accepted or not by the upper tier. What I am doing is advising you. These are things you need to think about if you are going to appeal, because if the appeal is a rant at the system or things you assume they haven't looked at, permission won't be granted. An appeal to the upper tier needs to be specific to be granted.

 

You may benefit from representation. You can get this for free, most local councils have a Welfare Rights representation unit. Welfare Rights officers are experienced with these things, they have dealt with many appeals and will know exactly how to word an appeal to the upper tier, what sections of which laws to quote, and which case law, if any would assist in your case. If they feel you haven't a chance, they'll also be upfront about this with you.

 

The unfortunate thing is that it was a paper appeal. Oral appeals tend to have a higher success rate. Upper tier appeals are rarely held orally but it isn't impossible, you can request it, though they will not automatically grant it. If you could get an oral hearing, this would be best - your representative can attend with you.

 

In light of the fact that your condition has changed, I would also advise you to apply for ESA - this is the new incapacity benefit.

 

If you want to have a look at previous upper tribunal decisions, there is a searchable database here. As you will know the reasons your appeal was disallowed, this may help you to decide if you want to pursue this - it may also give you an idea of any cases you could use as case law to fight your corner.

 

Best wishes

Erika.


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...In light of the fact that your condition has changed, I would also advise you to apply for ESA - this is the new incapacity benefit...

 

Thankyou for mentioning ESA to the postee, Erika. It was floating through my mind as a possibility but I was unsure.

 

Rae

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I've pasted this in most ATOS related threads I can find, not just here but on other forums as well.

 

Use a dictaphone or mobile in a pocket, set it away before the assessment starts.

 

(edit)

Edited by ErikaPNP
please refer to section 3.12 of the site rules

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