Tribunal 'partial victory' placed in WRAG.

[estellyn]

Thank you both, very much for responding.

 

Greatly appreciated, and will attempt to respond tomorrow.

 

The only evidence provided at the tribunal was written, they negated the need for any oral evidence, which could very well be a procedural impropriety, I am able to use the RBL ''independent living'' team to attend my tribunal, but once again, these are people who Know nothing about me and are merely in attendance as my ''appropriate adult''.

 

 

Are you saying they asked you nothing at the Tribunal?

[Bazooka Boo]

That is correct yes, it took all of 5 minutes.

 

The judge simply said, ''thank you for coming, we won't drag this out any longer and put you under any more stress''

Told me I had attained the required points, and that my ESA would be backdated to Feb.

 

At the minute I receive zero benefit, although the JCP still demand I go for a WFI, in fact I'm in there next week, quite what they believe they're going to do is beyond me.

 

''Menial paid work'' has been banded about a couple of times, which makes me so damn angry, as I was a professional British Soldier, a troop Sergeant responsible for 33 soldiers..

[estellyn]

Does the statement of reasons say they considered support group at all for you, and give reasons as to why they discounted it?

[Bazooka Boo]

Yes just found it on the back page..

 

This is verbatim...

 

''Having found Mr XXXXXXXX to have limited capability for work, the tribunal considered the points it had awarded

did not amount to him being unable to engage in work related activity under schedule 3 and the analogous (?) activities of social engagement and behaviour.

Those representing did not seek placement in the support group and the tribunal accepted their contention in relation to activity 17 under schedule 2,

which does not transfer directly to the level of severity required to support schedule 3, and whilst not accepting their request for 9 points under activity 16 of schedule 2, even that would not have translated directly to attainment of the analogous activity under schedule 3''

 

All mumbo jumbo to me!

 

I'm just going through the myriad of deforestation I have regarding the tribunal papers, so as to join the evidence up with their statement of reasons..

[Guest]

if re 'error in law' re Judicial Review, bear in mind the JR time limits for application.

[Bazooka Boo]

Yes thank you Ford, got a good three weeks to reply yet, Ideally I am wanting to get the ''error of law'' letter into them this week.

 

Managed to collate all the evidence they have relied on, less for 5 sheets of paper.... doing a very good job of hiding??

[Guest]

some brief info, prob already seen

http://www.disabilityrightsuk.org/appealing-upper-tribunal-against-first-tier-tribunal-decision

nb also, para 14, re JR referred to.

[BazzaS]

if re 'error in law' re Judicial Review, bear in mind the JR time limits for application.

 

Absolutely, although :

a) if there is an expected appeal route instead of JR, you'd be expected to use that appeal (Upper Tier Tribunal) route rather than JR, and

b) it makes sense to use the appeal rather than JR as it will be much cheaper too!.

 

I mentioned the JR grounds (as well defined in the CCSU case) not to suggest "use JR" but instead as a framework for grounds for an upper tier tribunal appeal.

[Guest]

am with you 'grounds' as briefly per para 8, 9 in that link #11. ie similar re as per JR.

[Bazooka Boo]

Many thanks again, I am going the UT route, it's just they state there has to be an ''error of law'' in order for me to appeal to them.

 

All I can think of at the minute is a procedural impropriety..?

[estellyn]

What grounds do you think you qualify for the support group under?

 

 

The SoR blurb mentioned 'those representing' - who was representing you, and did they make a case for support group in the written materials?

[Bazooka Boo]

In the written materials from Headway yes they did.

 

But at the actual tribunal, I was never asked anything and neither was the RBL rep, it was one way traffic!

[estellyn]

In the written materials from Headway yes they did.

 

But at the actual tribunal, I was never asked anything and neither was the RBL rep, it was one way traffic!

 

 

So what grounds were argued in the written materials - which support group descriptor or reg 29/35 etc?

[Bazooka Boo]

Both those, 29 & 35 were argued.

[estellyn]

But no mention in the SoR that 29/35 were considered by the Tribunal?

[Bazooka Boo]

The only mention was Reg35, and that it did not apply to me, no mention of Reg29.

 

It appears that they are cherry picking what info they are relying on, and ignoring others.

They say that my activities on a daily basis indicate that I am capable of engaging in some form of training programme

for the purposes of seeking suitable employment.

 

One of their arguments is that ''Mr X was orientated and able to lay down new memory track, he was independent with his aspects of daily living......''

This was on the ward at the QA from 2006..!

 

Then they take evidence from 2013??

[estellyn]

It sounds like you have a few avenues to pursue to UT, but as I can't see all the evidence or the SoR, I can't be very detailed.

 

 

Firstly, reg 29 isn't applicable if you score enough points for WRAG, but reg 35 is, and there really needs to have been some discussion in the SoR as to why the arguments made by your rep in writing aren't applicable to you - otherwise it's insufficient finding of fact.

 

 

Were arguments made by your rep for any support group descriptors and if so, were the reasons not to give you those points discussed in the SoR?

 

 

Is there any discussion as to why your eligibility for support group was basically made on paper, rather than in an oral hearing as you requested and were entitled to?

 

 

It looks like in considering the support group, in the paragraph you posted, that they considered the descriptors involving 'appropriateness of behaviour with others' and 'coping with social engagements' - are these the only descriptors you scored points on, or did you score points on any other descriptors?

 

 

ETA: Also if relying on information provided from 2006, rather than give you a full oral hearing, then this may also be very relevant.

 

 

But I should point out, that whatever advice you get here, you will need to get an experienced welfare rights adviser to help with an UT appeal - you may qualify for legal aid for this dependant on your household income.

 

 

Also is there a reason you are not getting income based ESA, for instance working partner, too much capital or too much household income to qualify?

[Bazooka Boo]

Many thanks again..

 

I have a service invaliding pension which negates me being eligible for ESA(IR)..

 

I am happy to scan and upload the SoR, and yes your right, it is far too much for me to cope with so outside help is going to be needed for this.

[estellyn]

Yes, someone who can actually see your full appeal materials including submission and evidence, and read the SoR will be able to give you a better idea of whether you have a case.

 

 

All I can say is that if there isn't sufficient explanation as to why support group wasn't applicable to you, or if the evidence they have used is out of date (rather than have the oral hearing and ask you in person) then you may well have a case.

 

 

By all means scan the SoR if you want to and can take out identifiers, I'm happy to take a look.

[Bazooka Boo]

Many thanks once again, I'll get onto it ta

[Bazooka Boo]

[ATTACH=CONFIG]50278[/ATTACH]School boy error!

 

Hopefully the scans have uploaded, and suitably redacted..

Edited April 16, 2014 by Bazooka Boo
Uploaded Jpeg's instead of PDF's!! Numpty!

[ericsbrother]

an error in law can also be that the judge misdirected themselves and reached an opinion or conclusion that was contrary to the facts and there fore the decision perverse. Pick through exactly waht was said, find some case law on your situation and that might be worth arguing as it would allow for the evidence to be re-examined.

[Guest]

bazooka, just to check you saw the link #11, eg para 8, 9 in brief.

then, there is any poss relevant case law, eg bailii.org

[Bazooka Boo]

That's the issue though Eric, nothing was said, it was all written evidence taken into account, I wasn't asked anything.

 

Less for the HCP who fabricated his report, which the DM then agreed with, this has been argued from day one, and even admitted by ATOS themselves ''in writing'' that they disagree with the HCP's findings in that I don't have any cognitive or mental health issues.

 

Then it went to the FTT, whereby they partially upheld my appeal, placing me in the WRAG group, that has now finished, benefits have all stopped, living off handouts from family, my service pension, and a bit of begging here & there.

 

I've picked through the SoR a million times, and still there are gaping holes in what they have used to rely on in making their decision.

How can they use documented evidence from 2006, then jump back to 2013?

 

If they are relying on the 2006 evidence then they will have to do a complete reversal, as I only began receiving IB in 2007..

 

They have also relied on evidence which has been discredited relating to the ATOS Interrogation, the fact that the whole WCA is now discredited and ATOS have pulled out of the contract should also speak volumes about how this has all been done.?

 

I dunno, like I say, it's wearing me down, the less I have to do with the state the better, it is having a big impact on my mental health, which is what I think these people rely on, hoping one by one we all top ourselves and they can continue with their super race!

Edited April 16, 2014 by honeybee13

[estellyn]

[ATTACH=CONFIG]50278[/ATTACH]School boy error!

 

Hopefully the scans have uploaded, and suitably redacted..

 

 

I had a quick read. As I said, it is hard to without the evidence that they relied on to make the decision.

 

 

1) Was any of the evidence they used to justify their decision refuted in the submission provided to the Tribunal? For instance the activities that it is stated that you do or the frequency that you do it, for instance the pub, yoga, gym?

 

 

2) I can't see their justification for the coping with change descriptor - not that this would have an effect on support group, they've just not backed up their reasoning properly on that.

 

 

3) Are there reasons why you don't have input for your issues any more, as stated in 17, and were any reasons given in your submission.

 

 

4) What reg 35 reasons were given in your submission for not being able to undertake work related activity.

 

 

5) when and in what context did the GP say work and training would help?