failed atos health check

[23sopwith]

my girlfriend recently had atos review went from 18 to nil appeal going in they have subsequently stopped her esa.

what is now available, re benefits obvipusly she will lose her esa but will they stop her child tax credits as well

any advice welcome.

[debt4get]

she needs to appeal the decision, get a form gl24 download fill in and resend asking them for a reconsideration or failing that tell em you would like to appeal, also inform them you wish to have your payment reinstated till appeal is heard, i would advocate ringing dwp and putting it all in motiion

[**Margaret**]

:23sopwith:

 

'what is now available'. Once your girlfriend's lodged a valid appeal she may be entitled to assessment rate employment n support which needs to be evidenced with Med 3 (unfit) notes from her doctor.

 

Contribution based employment n support, at assessment rate or with the work related activity component, is payable for an overall total of one year.

 

Income based employment n support, which depends on her income (or lack of it) and yours if you live together, can be paid until her appeal is decided. Same for the child tax credits.

 

Forum guide to appeals at;

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?251737-Appealing-or-going-to-a-Tribunal-Some-useful-information/

 

Best wishes, Margaret.

[23sopwith]

ive probably missed this but at an atos appeal at a tribunal what is the burden of proof ie reasonable or beyond all reasonable doubt and is it thye dwp who have to prove fitness to work via atos or vice versa

my first appeal was adjourned as dwp didnt answer my request for disclosure, they have now after being ordered by the tribunal have done so however have only cherry picked what they wanted and not was required of them,

am i within my rights to ask the clerk to further order dwp to provide such info or as im inclined to just leave asnd bring it up during the hearing

[estellyn]

ive probably missed this but at an atos appeal at a tribunal what is the burden of proof ie reasonable or beyond all reasonable doubt and is it thye dwp who have to prove fitness to work via atos or vice versa

my first appeal was adjourned as dwp didnt answer my request for disclosure, they have now after being ordered by the tribunal have done so however have only cherry picked what they wanted and not was required of them,

am i within my rights to ask the clerk to further order dwp to provide such info or as im inclined to just leave asnd bring it up during the hearing

 

The Tribunal decide on a 'balance of probabilities'. The DWP make their case for their decision in the submission in your appeal pack, with supporting evidence of the ATOS assessment, ESA50 etc. It is then up to you to make your own case as to why you meet the criteria to have limited capability for work or work related activity, and refute any evidence the DWP has used - in most cases the major evidence is the ATOS report.

 

In my opinion you'd be best to bring it up in writing before the hearing - if you wait till during the hearing, you then risk another adjournment.......unless you're OK with that, of course.

[honeybee13]

Hello there.

 

I've started a new thread for you rather than asking questions on someone else's thread.

 

Please continue to post your questions here.

 

My best, HB

[**Margaret**]

:23sopwith:

 

From my experience the best way to approach an appeal to a benefit tribunal is to concentrate on why the appellant meets the legal criteria for the benefit and show it's more probable than not that Atos/Work n Pensions got it wrong. Once an award's in payment the onus is on Work n Pensions to argue that the claimant's no longer entitled to the award.

 

Except for a claimant who wants to argue about risks to mental and physical health. For ESA regs 29/35 burden of proof lies with the claimant, but it's still on a balance of probability.

 

Earlier this year an upper tribunal judge had quite a lot to say about non disclosure of evidence. CE/3378/2011.

 

Unless you've your own agenda for wanting a further adjournment, I'm inclined to agree with :estellyn: that you should write to the tribunal. Apart from anything else, I'd find it easier to list the missing documents in writing than to explain what I wanted and why around the tribunal table. Which is why I'm also a fan of written submissions. But you can't fully prepare one until Work n Pensions have complied with the tribunal's direction.

 

Best wishes, Margaret.

Edited September 19, 2013 by **Margaret**

[swinginapig]

:23sopwith:

 

From my experience the best way to approach an appeal to a benefit tribunal is to concentrate on why the appellant meets the legal criteria for the benefit and show it's more probable than not that Atos/Work n Pensions got it wrong. Once an award's in payment the onus is on Work n Pensions to argue that the claimant's no longer entitled to the award.

 

Except for a claimant who wants to argue about risks to mental and physical health. For ESA regs 29/35 burden of proof lies with the claimant, but it's still on a balance of probability.

 

Earlier this year an upper tribunal judge had quite a lot to say about non disclosure of evidence. CE/3378/2011.

 

Unless you've your own agenda for wanting a further adjournment, I'm inclined to agree with :estellyn: that you should write to the tribunal. Apart from anything else, I'd find it easier to list the missing documents in writing than to explain what I wanted and why around the tribunal table. Which is why I'm also a fan of written submissions. But you can't fully prepare one until Work n Pensions have complied with the tribunal's direction.

 

Best wishes, Margaret.

If claimant is arguing the risks to Mental and Physical Health for Esa regs 29/35 does that mean the burden of proof lies with the Dwp to prove these regs dont apply to the claimant????

[antone]

If claimant is arguing the risks to Mental and Physical Health for Esa regs 29/35 does that mean the burden of proof lies with the Dwp to prove these regs dont apply to the claimant????

 

No, the burden of proof lies with the claimant. But unlike a criminal court, where the standard applied is "beyond a reasonable doubt", a Tribunal is an informal civil proceeding, and uses the standard of "on the balance of probability."

 

So a claimant wishing to use 29/35 must show that these regs apply in their particular circumstances.

[23sopwith]

further to my entries about non disclosure have followed advice of margaret and estyllyn still no disclosure as ordered by judge. adjourned tribunal now due this wed.

do the dwp recognise the tribunal, i ask this as on the original date they never turned up, the judge made an order for disclosure with the words "without exception" attached theyve ignored that, and i only noticed yesterday that in their statement they ask for the right to appeal the decision if made in favour of the claimant

a little strange or is this the norm

[bedofweeds]

further to my entries about non disclosure have followed advice of margaret and estyllyn still no disclosure as ordered by judge. adjourned tribunal now due this wed.

do the dwp recognise the tribunal, i ask this as on the original date they never turned up, the judge made an order for disclosure with the words "without exception" attached theyve ignored that, and i only noticed yesterday that in their statement they ask for the right to appeal the decision if made in favour of the claimant

a little strange or is this the norm

 

The DWP for some reason are now more and more deciding what evidence would suit their purpose and keeping quiet about other evidence that they hold that could well be of great help to the claimant.

 

I have had two similar situations. One where the Tribunal demanded disclosure and that the DWP said were irrelevant and refused to supply them citing that the case was open and shut in their favour no matter what they disclosed. (Evidence that a decision notice had been sent to the wrong address - they only had to show that it was posted to the last known address in any event). the DWP won that case (when this became apparent it was beyond the 13 month time limit).

 

And a second one where they refused to include a letter in their submission, that a copy hadn't been kept by me which clearly stated that it was to be treated as an informal appeal. I subsequently, at the request of the DWP, had to complete a GL24 as they wouldn't accept the appeal letter which was then immediately refused as it was outside the 13 month time limit. (The Tribunal required disclosure of this letter but the DWP cited that it was irrelevant as a formal appeal was issued which made the original informal appeal null and void and which was subsequently out of time.

 

I do have a strong feeling that instructions have been issued to the DWP to tighten up on appeals and claims and to use whatever means that are available to stop money being awarded.

 

Previously (years ago) these situations would never have arisen as decisions and awards were sometimes given if it was reasonable and just to do so despite legally they were not due.

[estellyn]

further to my entries about non disclosure have followed advice of margaret and estyllyn still no disclosure as ordered by judge. adjourned tribunal now due this wed.

do the dwp recognise the tribunal, i ask this as on the original date they never turned up, the judge made an order for disclosure with the words "without exception" attached theyve ignored that, and i only noticed yesterday that in their statement they ask for the right to appeal the decision if made in favour of the claimant

a little strange or is this the norm

 

It is normal for the DWP not to turn up to appeals - the ones I attended, it was a rare occurrence for the DWP rep to be there.

 

They are supposed to respond to directives by the Tribunal Judge, and if the appeals officer responsible fails to respond, they will get into trouble.

 

The fact that they ask for right to appeal further in their submission makes me wonder if this DWP appeals officer is inexperienced and has a lack of understanding of proper procedure.

[bedofweeds]

 

They are supposed to respond to directives by the Tribunal Judge, and if the appeals officer responsible fails to respond, they will get into trouble.

.

 

We all know what they are supposed to do, but in my own two hearings, they didn't and when I pushed the matter with the Chair he said that he was quite happy with the DWP's explanations as to why they shouldn't respond.

[23sopwith]

had my appeal this am i got the same reaction as bedofweeds to my queery about non disclosure,

the chair was a "little hitler" kept interupting the doctor and disagreeing with him, ie, i have epilepsy and the doctor was trying to ascertain weather i had day time abscence as well as grand mall seizures, the chair said but thats only day dreaming....

in for an hour had a right grilling didnt get a decision as they said they needed to talk about it and that the printer wasnt working so couldnt give me a formal decision.

i presume from what the chair was saying they will not allow my appeal

i get no benefit other than ni contributions as my wife works

will i still have to attend the job centre to "sign on" and attend all these meetings and training courses,

[Nystagmite]

You may not be able to sign on. You may be in that stupid situation of being found fit for work by the tribunal and ATOS and the job centre / DWP saying you're unfit for work.

[estellyn]

Sorry you had a bad experience - sadly it does happen. if you're not successful, you can ask for a statement of reasons and record of proceedings to see if there has been an error of law to allow you to appeal to the upper tribunal.

[23sopwith]

well ive had 24hrs now to consider my tribunal, it was a bit of a "farce" really im pleased it happened to me and not somebody who will no doubt have been upset about the proceedings.

being threatened with "contempt" by the chair before the hearing started to wanting to know how i met my wife and weather we were intimate or not, (that took the biscuit) and the chair was politely told it had nothing to do with him, to the reason for not giving me an answer other than i hope you think weve been fair with you even if you dont like the outcome sums the tribunal up.

cant wait to get a transcript of the hearing and a statement of reasons.

[Perseus1]

I assume that you have consulted with your own Doctor?

 

What I did (because I wanted to find work as I was put on IB against my precise wishes) was to ask my Doctor for a "Fit for Work" certificate. He refused (I think on the grounds in was out of his precise job remit).

 

ATOS found me fit for work anyway. I just did not realise that the WP programme would be unhelpful.

 

The point is that my benefits were restored to my original rate quicker than people went through the tribunal process.

 

I just told the truth and I could not care less if I won or lost. I let them decide.

 

The real big bonus is that now when filling in Job Applications I can tick the box saying No to disabled courtesy of ATOS. And I think I might have a case to avoid being dismissed for any job for lying on the application form.

 

It is all OK unless I get sanctioned.

 

Has anybody else got a "Fit for Work" certificate?

 

The Fit for Work certificate pronounces you fit for work subject to certain restrictions.

[estellyn]

well ive had 24hrs now to consider my tribunal, it was a bit of a "farce" really im pleased it happened to me and not somebody who will no doubt have been upset about the proceedings.

being threatened with "contempt" by the chair before the hearing started to wanting to know how i met my wife and weather we were intimate or not, (that took the biscuit) and the chair was politely told it had nothing to do with him, to the reason for not giving me an answer other than i hope you think weve been fair with you even if you dont like the outcome sums the tribunal up.

cant wait to get a transcript of the hearing and a statement of reasons.

 

I've been to a lot of appeal hearings - none that sounded like that. Sounds awful, how on earth did you keep your cool? And why were you threatened with 'contempt'? When they started calling Tribunal chairs 'judges' it went to a few of their heads, I believe.

[**Margaret**]

:23sopwith:

 

So for your experience with the Tribunals Service. As moral support, and once as a witness, I've been to several tribunals without a similar experience but unfortunately there's an exception to every rule. Now, if there's only national insurance credits at stake you may not want to pursue this further at cost to your health. But if you do here's some pointers.

 

You don't mention whether or not you've received a written decision yet, but you're clearly aware that you can apply for the statement of reasons and record of proceedings as soon as you have. Once you've read the statement of reasons, if you feel the non disclosure by Work n Pensions has affected the outcome, that in itself may constitute an error of law.

 

Complaints about the Judiciary;

 

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/ex343-eng.pdf

(Page 3)

 

http://judicialconduct.judiciary.gov.uk/making-a-complaint.htm

 

If the non disclosure concerns previous Atos reports there's at least two more persuasive decisions on the Tribunals Service decisions database.

 

Tribunal panels usually consider medical treatment and confirmatory evidence to establish the frequency/severity of epilepsy and its after effects.

 

What's welfare rights like in your area? Once you've done some background reading and collected the paper trail, you're likely to need professional help if you decide to take this further.

 

Sincerely, Margaret.

Edited November 1, 2013 by **Margaret**

[**Margaret**]

:23sopwith:

 

Missed the bit about 'signing on'. To some extent whether national insurance credits are worth the hassle depends on how old you are and how many you still need for a full state pension.

 

Credits only claims for employment n support and jobseekers involve work focused interviews but you can't be mandated to the work programme.

 

Margaret.

[Perseus1]

I have been to a handful of tribunals and the last time I did not have an advocate and they messed me about as I could not produce the evidence needed.

[23sopwith]

well surprise surprise, my appeal was turned down, didnt have a chance really, even though i produced relevant

evidence, it was just brushed aside by the chair, as far as the contempt is concerned the "chair" said hed read my appeall papers and wasnt very happy that id made a recording of the examination by atos, wasnt suited when i told him it was perfectly lawfull provided it was for my own record, he then asked me was i recording the tribunal proceedings i said no and offered to let him search me. things went down hill rapidly after that. didnt get a fair crack of the whip new before i got the result he would rule in favour of atos