ESA - Lost Tribunal - Upper Tribunal Awarded...UT Postponed!!!!

[Max1968]

Appeal to Upper Tribunal................................Parts 1 to 5

[Max1968]

Appeal to Upper Tribunal......... Parts 6 and 7

[Max1968]

Hi all, sorry it's been a while. Find attached if you are interested 7 parts of my appeal to the Upper Tribunal. Sorry it's a bit of a mish mash, the uploader won't accept PDF files and it's difficult to put it in an order of sorts. Mods, I have proof read it and taken out both my name and names of the Judge and Doctors however if I have missed a name please can you delete and inform me so I can rectify it asap.

 

 

I have not included the evidence regarding unregistered doctors because that is all elsewhere on this thread.

 

 

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Lapsed Workaholic, Many thanks for your kind words. I haven't been on for a while because the last thing I did was appeal to the upper tribunal (my appeal is attached above) and as always I am still awaiting a reply. I do not expect to get a new appeal but my intention really was just to get a lot of stuff off my chest.

 

 

If you read the appeal you will see what we are all up against. Despite things like the HCP at my WCA lying about performing certain checks and lying about asking me to do certain things the Judge at the Tribunal merely ignored it, preferring to concentrate on attacking both myself and my GP for a letter he did not actually write!!! Whilst the inaccuracies of the Judges report may not be important for some say we were dealing with a Criminal case here. Inaccuracies in a court of law lead to wrongful innocence or guilt and whilst this is not a criminal case I have arguably lost my benefit on the back of a batch of untruths and inaccuracies from every department of the DWP's disgraceful system from start till finish. And then a Judge of all people decides to try and make myself and my GP out to be the bad guys with the Judges put forward "evidence" as a letter that was actually written by a totally different person at a totally different stage of the process.

 

 

The process sadly takes so long that by the time you get to a tribunal your condition may have changed. My lord mine did certainly not helped by the endless battle you are put through. The funny thing is that the DWP would probably get more people back to work without this ridiculous process because people do not have time to focus on their recovery. Instead they are not only fighting their condition but the stresses of trying to fight the DWP and others. It's not surprising that people actually get worse!!!

 

 

Ironically after I lost my tribunal I actually woke up a couple of weeks later and my vertigo had gone. A few wobbles and I still get a wobble or two but incredibly it went as quick as it came, 14 odd months after it started. No idea how or why but it may not be a coincidence that I was at the end of the road in way of fighting, I had thrown the white flag up and maybe in some way I de stressed. I still suffer with the insomnia and have a cardiologist appointment and a sleep study coming soon and I am in my third month of signing on with only one interview to my name which isn't surprising considering a gap of 14 months down on my CV due to illness. Fit for some work I may now be but finding it is another matter!!

 

 

Again ironically the GMC pages about Unregistered GP's have now been shut down and it's very much open to interpretation as to what qualifications are needed for an unregistered GP to be sitting on a tribunal. It's probably a coincidence but it seems strange that after I spoke to my MP about it and queried the GMC the pages of evidence I needed suddenly disappear. I have however stressed on my appeal that this is all about "at the time of my tribunal" and "at the time of my tribunal" Unregistered GP's were not meant to sit on Tribunals.

 

 

I doubt I will hear back and I certainly won't succeed in another appeal but at least I have done all I can do. I did contact a newspaper but got no reply whatsoever. It's all swept under the carpet and ill/disabled and frightened people pay the consequence of the system. I could go into a long speech about how the Government could save money considering the amount wasted on Foreign Aid and Immigration amongst other things but I wouldn't waste my breath because unfortunately no-one who could actually do anything listens!!

[tommy456]

Looks quite clear and to the point, well done, But the error of fact with regards to which ear has the problem ie which you use a hearing aid in being incorrect, whilst it is an error, would it affect the decision the tribunal came to?

This is what they will look at, some errors are deemed acceptable such as slip of the pen errors, then there's their view that your GP was just assisting you to claim a benefit, again debatable, they have also said that although he has confirmed aspects about your health conditions he didn't provide evidence of how they limit you, I had a similar thing in my statement of reasons regarding my GP's letter , were they said that my GP was just repeating what i had told him to say, rather than being based on his clinical findings ,so gave it little weight, and that's after there being guidance from a senior judge (case law) that says to avoid using the terminology they used, about the GP's letter After my CAB caseworker had scrutinised the SOR and ROP he concluded it didn't have any legs and wouldn't be requesting leave to appeal to the ut, but i could do it myself if i wanted to , as there was a likely hood of them throwing it out

[Max1968]

Fair points Tommy but yes I think an incorrect staring of which ear your hearing aid is in does matter because if they get one thing wrong how many other things do they get wrong or not listen to? No it doesn't effect the outcome of the Tribunal but it's the point of it that a Judge, a top member of the Judiciary cannot get a simple fact correct,. We have to as claimants be bang on so surely we should accept the same from the "decision makers".

 

 

My GP wrote a second letter because the DWP took it upon themselves to claim my condition was controllable, which it wasn't, so I had to ask my GP to write to tell them that it was not under control. A letter that cost me £20 because they "lied" (allegedly) about my condition being under control. Ok it may be a typo on their behalf but it's a typo that cost me £20 to defend against it. For sure maybe a GP's letter doesn't show the limitations that you are under but a letter stating a persons condition and the fact that in the GP's opinion a person is not fit for work should be enough. I wobbled from side to side into that courtroom and had a vertigo attack there and then. The Judge told me off the record that she understood I would find it practically impossible to find an employer who would employ me but because I don't fit the "criteria" it makes no difference.

 

 

As I say I am not expecting any reprieve,. I just needed to make my point to those at the top that the whole system stinks and I know it stinks.

[tommy456]

What if you had a vertigo attack on your way to work or returning home, would that not put you at a substantial risk of harm?

 

I'm thinking along the lines of the two regulations 29 or 35 isn't it, where you may bot fit into one of their pigeon holes /meet the descriptor criteria,

Did their report say they had considered regs 29 & 35 or not?

 

as that could possibly be an error too, though getting awarded ESA via either of these regs lately is nye impossible

[Max1968]

Yep they had considered Regs 29 and 35 or whatever they are. I think the DWP originally stated something along the lines of "Reg 29 and 35 do not apply because the claimant does not state why he would be more at risk at work than he would be at home whilst having an attack". Which was a hollow argument really because as anyone with half a brain knows at home any risk you take is yours and no one else's. Didn't help that I took myself to both WCA and Tribunal but they both happened to be on a day where I could. They didn't take into account that it took me double time than normal to walk from the station to the WCA and that I was holding onto a wall for the journey. That's where their "fit for work" argument falls down because where you might be able to attend work on a Monday and Wednesday you may not be fit to attend on a Tuesday, Thursday and Friday and what employer is going to risk that if the other 20 or so applicants can guarantee that they will be in Monday through Friday. I even tried to point out the "Reliably - Repeatedly - Safely routine but to no avail.

 

I did say to my Work Coach at the Job Centre that being "forced" back into work could be hazardous for both myself and any employer and if I were to have an accident at work due to my condition I have enough written evidence from the DWP and Courts to show that they found me fit. So I said that I would just sue any employer who wouldn't make allowances and sue the DWP for forcing me back into work when clearly not fit. Funnily enough she hasn't given me any hassle at all when I go in week after week with little to show for a week of job search!!!

 

 

What would be interesting to see on these tribunals is to have an employer in attendance rather than an "unregistered doctor". At the end of the tribunal the Judge should ask the employer if they would employ you and how would they adapt their work conditions, hours etc to help you work with your condition. It would be interesting to see how they would answer and even more interesting if placed in the situation that they would have to employ you afterwards would they? Yeah right!!!!!

[tommy456]

The whole thing from the pointless not fit for purpose WCA interview farce onwards is flawed, the tick box MR that is just a delaying tactic that causes financial hardship for many , and even the tribunal for some isn't no magic bullet as they have their own agenda,

[Lapsed Workaholic]

The article in the link below is well worth a read if you haven't already done so. It says that it is not enough to say that Regulation 29 and 35 of the Employment and Support Allowance Regulations do not apply, they have to have regard to the findings and rulings of judges in previous Tribunal Hearings and then explain in detail why those findings and rulings are not applicable in your case.

http://www.cpag.org.uk/content/making-exception

 

 

 

[Max1968]

Well still no reply from my request to the upper tribunal and it's well over a month later. Didn't expect to succeed with an upper tribunal but some sort of response even if to tell me where to go would be nice!!!!!

[TW25]

Really good read and so much i can relate to except having the stomach for the fight that Max has shown. Wish i had that in me. A few things is when claiming JSA the minimum required steps to find employment is 3 a week. Think Max's advisor has been harsh with the 10 jobs and 90 min travel. I have my commitment form for look in local paper, Get help on computer searching for work and look in shop window/notice boards for pt time 16+ hrs a week 30 min traveling time. None of this scatter gun approach. Might apply for 3-4 jobs a week max.

Similar to max whilst there maybe something i can do due to being unreliable as chronic pain flairs up no emploer will touch you once the application is filled in as they ask about medical history and any disabilities/medications.

Hopefully all is well with Max and he comes back to update us on his journey through what is a flawed system.

[Max1968]

TW25,

Don't think I put down my advisor insisted on 10 jobs a week I think that may have bene someone else.

 

 

My usual advisor is ok to be fair now after the first few weeks locking horns.

Better certainly than the temporary one I saw this morning due to my usual advisor being off. Conversation went like this :

 

Advisor - "well you have been unemployed for sometime, why do you think you are not getting interviews?"

 

Me - "No real idea although my health conditions don't help - maybe you can tell me?!"

 

Advisor - "What roles are you aiming for?"

 

Me - "Teaching Assistant and Office Admin."

 

Advisor - "Well your personal profile on your CV is all wrong because it only mentions TA work so you won't get admin work with it"

 

Me - "It mentions both TA and Admin work in the profile. My CV was designed by the CV advisor here at the Job Centre whom I had an appointment booked via my Work Coach".

 

Advisor - (totally ignoring that I just said my CV was designed by one of their own people) "Well you need to improve the personal profile and upload several versions f your CV on jobsites like UJM"

 

Me - "You can only have one public CV in view at any one time on jobsites"

 

Advisor "Well you will just have to keep rotating them."

 

Me "Ok, it may have something to do with the fact that there are 50 odd applicants to every job."

 

Advisor - "No that's not true, we don't have unemployment in this area"

 

Me - (Thinking, well there is me and all the other claimants in here at this time for a start) "Well it gets frustrating when you don't hear back after applying for 3 or 4 a week."

 

Advisor - "You will have to get into the habit of waiting a week and chasing up the employer."

 

Me - "Well if you apply through Jobsites it's all usually done through the jobsite and rarely do you get employers contact details and quite often you are not actually aware of the company you are applying to." (Thinking that's it's clearly a deliberate tactic by employers to STOP people bugging them when people don't get an interview.)

 

It continues like a tennis match, to and fro with the advisor clearly living in cloud cuckoo land!!!!!

[TW25]

Glad you are still around Max.

 

Be interesting to see who they link you up with for mandatory unpaid work in time.

Which employer will take the risk ?.

 

I got sent to a very understanding charity shop who at first never wanted me with a bad back only 3 miles away 16hrs a week in the summer which helps my pain mood etc

but even then i nearly had to quit as was having more meds than i should some days.

 

Also if you fail to complete you get sanctioned so how the hell you will have any control ill never no.

 

I always through the line of give me a job at the job centre.

I can be on the ground floor saying floor 1,2 or 3 sir/madam and be shown how to use a photo copier.

No jobs for me but the offer apprentice

 

Really hope you get the justice you deserve or even better your health back as im yet to meet anyone who wants to live on 70 odd

[Max1968]

I have decided I wouldn't mind making a complaint about the advisor that criticised my CV especially as it was designed by the JCP in house work advisor,

 

however has anyone ever managed to make a complaint anonymously?

 

Is there a way you can do it?

 

Looking at complaints procedures online you have to mention your name, NI Number, Postcode and Phone number and I'd rather not be blacklisted with my JCP because of a complaint.

[Lilypad1]

Contact the tribunal for your response. They have to respond in a set time frame which I'm sure would be within a month

[Max1968]

Contact the tribunal for your response. They have to respond in a set time frame which I'm sure would be within a month

 

 

 

I contacted the Tribunal Service yesterday. They have had my appeal since mid December and it is apparently with the Upper Tribunal decision makers, or on their pile anyway!! I did politely mention that it is a tad unfair that as claimants the longest we get to forward anything is a month but their end they can take as long as they like!

[Lilypad1]

I'm sure they must have a deadline, does it say anywhere on their letters etc? Very unfair if not as you say!

[Max1968]

Well still no reply from the Upper Tribunal Service as it moves towards 4 months since I sent my last appeal!! Still jobless too with a mere two interviews to my name since the system declared me fit for work! I still maintain there is a chasm of difference between being declared fit for work and being employable, despite my condition easing a little over the last couple of months.

 

What makes me laugh is that after seeing that awful advisor at the Job Centre who criticised my CV and therefore criticised their own in house CV writer I now attend the JC every two weeks rather than every week due to a lack of staff being able to see everyone every week. And yet that advisor stated to me "we don't have heavy unemployment in our area so why aren't you getting interviews!!"

 

As system that keeps kicking you even though you are already on the floor!!

[Max1968]

Well interestingly after I posted the above I received an email from my Local MP.

 

He had already informed me that could not do anything regarding my Mandatory Reconsideration or First Tribunal decision but he was contacting the Minister of State for Work and Pensions regarding my query about an "unregistered GP" sitting on my Tribunal when all evidence I collected suggested that any GP should be at least registered.

 

To be honest I had forgotten all about it because my email to him was back in November but fair play to the fella as he obviously at least contacted them. His email is below for your interest.

 

Dear Mr ,

 

Further to my PA’s email to you of 22nd November, I have at last heard from the Ministry of Justice regarding the matter you raised with me.

 

I had originally written to the Minister of State for Work and Pensions but our correspondence was passed onto the Judicial Office, as I was informed that the Department for Work and Pensions are not involved in the selection of tribunal members.

 

Colleagues at the Ministry of Justice have now advised me that it cannot comment on the matters currently as you have appealed the original decision and your appeal cites the matters raised in your original correspondence with me.

 

This being the case, neither Ministers nor officials can comment at this stage.

 

This is not through any lack of concern for the issues that you raised but because the Judiciary must be free to carry out their duties without interference.

 

I understand that the tribunal will contact you when a Judge has considered your grounds of appeal.

 

Yours sincerely,

[tommy456]

4 months for them to reply without answering the question,

[Max1968]

4 months for them to reply without answering the question,

 

 

Oh yeah, one rule for them etc!!!! We get one month when they want something!!!

 

 

I'm going to push this though. Won't do me any good because my condition is a lot better now but if they have made an error of Law by allowing this unregistered GP on the Tribunal Committee then how many others have had this happen to them and also lost their Tribunal? It could run into the 1000's.

 

 

The only problem is that by reading that reply it seems that it's The Ministry of Justice themselves who allocate Tribunal members and it's The Ministry of Justice who are considering my higher appeal so it's not exactly an Independent Commission is it?! It will no doubt be swept under the carpet and I'll be given some pathetic legislation to say it's ok for them to employ such Tribunal Members but we will see.

[tommy456]

Oh yeah, one rule for them etc!!!! We get one month when they want something!!!

 

 

I'm going to push this though. Won't do me any good because my condition is a lot better now but if they have made an error of Law by allowing this unregistered GP on the Tribunal Committee then how many others have had this happen to them and also lost their Tribunal? It could run into the 1000's.

 

 

The only problem is that by reading that reply it seems that it's The Ministry of Justice themselves who allocate Tribunal members and it's The Ministry of Justice who are considering my higher appeal so it's not exactly an Independent Commission is it?! It will no doubt be swept under the carpet and I'll be given some pathetic legislation to say it's ok for them to employ such Tribunal Members but we will see.

Independent to the DWP maybe ,but still have the same paymaster ukplc

[Max1968]

Well letters and emails about my Upper Tribunal Appeal are like buses because 24 hours after the above email from my MP I have received the Upper Tribunal Decision.

 

Surprise, surprise it was against regulations for an "unregistered" GP to sit on my Tribunal so therefore my original Tribunal decision has been set aside and I will be given a new date for another Tribunal.

To say the least it is bitter sweet because I now (at the moment anyway) am free from Vertigo which is the main condition I was suffering from for over a year when I was claiming ESA although I do still suffer my secondary condition of Insomnia (recently diagnosed sleep apnoea). Therefore if I am still clear of the Vertigo by the time my appeal comes up I will obviously now be fit for work,. I have been job searching since my last tribunal in October but haven't found an employer yet who will take on someone who had vertigo for over a year!! As I said before a big difference between being found fit for work and being employable!!!

So whilst I am delighted that I was right about the unregistered GP and have got a new hearing is there any real point in attending if I am now fit for work because I obviously cannot now be declared eligible for ESA?

However at the same time I am aware that the original Tribunal was all about how my condition was the time of the Work Capability Assessment (May 15) which is when I was suffering very badly. So due to the fact that all the time I was claiming or appealing ESA I was either on the starting rate of ESA or I was claiming JSA (which was my only option for a while when I was appealing certain decisions by the DWP) would I possibly be entitled to back payments of ESA?? This could possibly be between November 15 (first claim) and May 15 (WCA) and May 15 (WCA) and October 15 (Tribunal Decision). Obviously this possibility only exists if I were to win the new Tribunal which I admit is a long shot anyway because I am only in this position now because of what they call an "oversight" rather than the Judge at the original Tribunal getting anything wrong. I honestly can't really see them deciding in my favour anyway but there again I will never know if I don't attend.

At the very least I am tempted to just turn up and as soon as I am in the room I will make my excuse to leave and tell them I just decided to waste their time like they have wasted my time over the last year and a half!!

I will start a new thread on this because there could be 100's if not 1000's of vulnerable people who may have lost their benefits at a Tribunal that was attended by an Unregistered GP and if that is the case then they also may be entitled to a new Tribunal hearing.

jpg-to-pdf.pdf page 1.pdf

jpg-to-pdf.pdf page 2.pdf

[tommy456]

So whilst I am delighted that I was right about the unregistered GP and have got a new hearing is there any real point in attending if I am now fit for work because I obviously cannot now be declared eligible for ESA?

 

Of course, you should because of this

However at the same time I am aware that the original Tribunal was all about how my condition was the time of the Work Capability Assessment (May 15)

Though you did answer your own question,

 

You with a fit note could also now go back on to ESA and give the JSA hoops the middle digit for a while, i know what i would be doing regardless of if i would be likely to succeed at the hearing or not, And you are still free to look for work in the meantime at your leisure

 

As for back pay it would only apply for the latest ESA claim, And if any back pay is due at the pre-assessment rate this would be paid when you restart this ESA claim, and if awarded the SG or WRAG then possibly backdated up to the date of this hearing, as the tribunal aren't interested in your state of heath now, so it is irrelevant or should be treated as such, regardless of it had worsened or improved that is the rules they apply

 

 

[Max1968]

Thanks Tommy. Good point about going back on ESA but that's a bit dodgy isn't it considering even I would say I am fit for some sort of work now, although with "treatment" for the sleep apnoea forthcoming sometime soon I suspect I won't be sleeping at all with a gum shield in my mouth!!!!!

 

 

Re backdated payments I am not quite sure I understand what you mean? Sorry I must have misread. As I understood it until you have your WCA you are on a starting rate of ESA? If you then pass your WCA then they pay you the full rate ESA although I have no idea how much that is. Therefore I wondered if at the new Tribunal they declared that I was actually unfit for work at the time of my WCA then I assumed that possibly I would be paid backdated payments from at least the date of the WCA where in the Tribunals eyes I would have been unfairly declared unfit for work, until at least the date of the original Tribunal if you get my meaning???!!!