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ESA Appeals - Frequently Asked Questions

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ESA Appeals - Frequently Asked Questions

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									Appeals – Frequently Asked Questions

How do I submit an appeal?

To lodge an appeal you need to submit a GL24 Appeal Form (within one month of the
date on the letter informing you of the Decision – see next FAQ for details).

The GL24 can be downloaded from here:

http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/@benefits/docume
nts/digitalasset/dg_201702.pdf

How long do I have to appeal?

Appeals have to be lodged in writing, within one month of the date on the letter
notifying you of the Decision that you wish to appeal.

There are very limited circumstances where an appeal can be submitted later than the
normal one month, wherever possible, lodging an appeal late should be avoided.

Example 1
On 18 November a claimant is notified of the decision on his claim for IS. The one
month period is 19 November to 18 December.

Example 2
On 31 December a claimant is notified of the decision on her claim for IB. The one
month period begins on 1 January. The calendar month ends on 31 January.

Example 3
On 29 January a claimant is notified of the decision on his claim for JSA. The
calendar month ends on the last date of the following month - 28 February. In a leap
year use 29 February.


See also:
How to submit an appeal www.dwp.gov.uk/docs/dmgch03.pdf
How long will it be before my appeal hearing?

The latest statistics from the Tribunal Service, for the period to 30 September 2011,
show that the average waiting time from the date of an appeal being lodged to the date
of the first hearing is currently.

- 31.4 weeks for Employment and Support Allowance an increase of 1.2 weeks on the
previous period.
- 35.4 weeks for Disability Living Allowance an increase of 2.7 weeks

The figures include an average 7.2 weeks for the DWP to carry out a Reconsideration
and prepare the case file for submission to the Tribunal Service


Source:

http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm111115/text/111115w0005.ht
m#1111164000075

Adding pages to your submission
Whether you are adding pages to your ESA50, DLA application form, or Tribunal
evidence, remember to add the following to the top of each page.
- Your name
- Your National Insurance Number
- A page reference e.g. page 1 of 2
Make sure all your additional pages are firmly secured to the base form, where
applicable.

The court service will send you and the DWP photocopies of the documents you have
submitted. They will be numbered by an officer of the court.


Do I have to attend WFIs while I appeal?
If you are appealing because you failed the ESA medical and were found Fit for Work,
then you are not required to attend WFIs while you wait for your Tribunal to be heard.

If you are appealing to be placed in the Support Group from the WRAG then you will
have an initial mandatory work-focused interview, and following this the Jobcentre Plus
adviser has the power to oblige you to attend further WFIs, and undertake work-related
activities.

Jobcentre Plus advisors have instructions not to forward claimants appealing to the
Support Group to the Work Programme.
Is there any risk to challenging a decision?

This depends on the decision you are challenging.

For example, if you have received no award of Disability Living Allowance or no award
of Employment and Support Allowance there is no financial risk involved in challenging
a decision. However, there is still a good deal of emotional effort involved. So, if you are
particularly unwell you may not feel up to the emotional demands of appealing. On the
other hand, if you actually received any award of DLA and challenge the decision then
there is always a risk that your award could be reduced or stopped altogether, rather
than increased.

In the same way if you are placed in the Work Related Activity Group (WRAG) for ESA
and challenge this decision because you think you should be in the Support Group, it is
possible that you may end up with no award of ESA altogether.

It is rare for people's awards to be reduced or lost in this way, but it does happen. So, if
you have an existing award, it is always very valuable to get an opinion from a welfare
rights worker if you possibly can before going ahead with a challenge.

Requesting Your Medical Records
If you want to view your health records, you may not need to make a formal application.
Nothing in the law prevents healthcare professionals from informally showing you your
own records. You can make an informal request during a consultation, or by phoning
your GP surgery or hospital to arrange a time to see your records.

Formal requests under the Data Protection Act
Under the Data Protection Act 1998, you have a legal right to apply for access to health
information held about you. This includes your NHS or private health records held by a
GP, optician or dentist, or by a hospital.

A health record contains information about your mental and physical health recorded
by a healthcare professional as part of your care.

If you want to see your health records, you don't have to give a reason.

Applying for access to your health records
Depending on which health records you want to see, submit your request in writing or
by email to:
- your GP surgery, or
- the health records manager or patient services manager at your local hospital trust.

This is known as a Subject Access Request (SAR).
You can ask for a range of dates or all of your records. The health records manager, GP
or other healthcare professional will decide whether your request can be approved.
They can refuse your request if, for example, they believe that releasing the information
may cause serious harm to your physical or mental health or that of another person.
Under the Data Protection Act, requests for access to records should be met within 40
days. However, government guidance for healthcare organisations says they should aim
to respond within 21 days.

You may have to pay a fee to access your health records so ask if there is a charge before
you apply to see them.

Charging for medical records

The Data Protection (Subject Access) (Fees and Miscellaneous
Provisions) Regulations 2000 sets out the fees a patient may be
charged to view their records or to be provided with a copy of
them. These are summarised below:

To provide copies of patient health records the maximum costs
are:

         Health records held electronically: up to a maximum £10
          charge.
         Health records held in part electronically and in part on
          other media (paper, x-ray film): up to a maximum £50
          charge.
         Health records held totally on other media: up to a
          maximum £50 charge.

All these maximum charges include postage and packaging costs.
Any charges for access requests should not be made in order to
make a financial gain.

To allow patients to view their health records (where no copy is
required) the maximum costs are:

         Health records held electronically: a maximum of £10
         Health records held in part on computer and in part on
          other media: a maximum of £10
         Health records held entirely on other media: up to a
          maximum £10 charge, unless the records have been
          added to in the last 40 days in which case there should be
          no charge.

Note: if a person wishes to view their health records and then
wants to be provided with copies this would still come under the
one access request. The £10 maximum fee for viewing would be
included within the £50 maximum fee for copies of health
records, held in part on computer and in part manually.

Source:

http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/@ps/doc
uments/digitalasset/dh_113206.pdf

Tribunals – Requesting a Statement of Reasons (after your hearing)

Whether you are considering appealing to the Upper Tribunal or not, there can be good
reasons for requesting a Statement of Reasons (SoR), from the judge of your (lower)
Tribunal.

The Statement of Reasons is a complete record of your hearing and will explain how the
Decision in your case was reached.

You can request a Statement of Reasons by writing to the Tribunal Service office that
dealt with your hearing, within one month of the date of the hearing and asking for a full
written decision.

In addition, you should request the Record of Proceedings, which details everything that
occurred during the hearing.

You should be aware when requesting a SOR, having won your Tribunal, that a copy will
also be sent to the DWP. Whilst unlikely, this does mean that they may consider an
appeal of the Decision, where previously they may not have.

SoR’s can take as long as three months to be returned so you may need to be patient.

What is an Error of Law?
When appealing a Tribunal Decision to the Upper Tribunal, you need to show that there
has been an Error of Law.
Commissioners Decision R(A)1/72 states that there is an error of law if:
1. The decision contains a false statement about the law e.g. they got the law wrong or
misinterpreted it.
2. The decision made is supported by no evidence
3. The facts found are such that no person acting judicially and properly instructed as to
the relevant law could have come to the determination in question (a perverse
decision).
4. There has been a breach of natural justice, i.e. the procedure followed leads to
unfairness.
5. The tribunal did not give proper findings of fact or provide adequate reasons for its
decision. There must be sufficient reasons so that you can see why it reached the
decision it did.
“The minimum requirement must at least be that the claimant, looking at the decision,
should be able to discern on the face of it why the evidence has failed to satisfy the
authority”
See also R(I)14/75 which states that a decision would be wrong in law if it was in
breach of the requirements of natural justice or failed to state adequate reasons.

Sources:
http://www.disabilityrightsuk.org/caselawsummaries.htm
http://www.rightsnet.org.uk/pdfs/ra/1_72.pdf

What will I be paid while I appeal?
ESA Fit For Work
If you have been found Fit for Work after attending your ESA medical (i.e. you scored
less than 15 points), This applies to a new claim, a re-assessment, or a transfer from IB,
IS due to incapacity, or SDA.

You are entitled to receive the ESA Assessment rate while you wait for your Tribunal
Hearing.

See note below

ESA Fit For Work due to a Technical Infringement
An ESA technical infringement covers a failure to return the ESA50, a failure to attend
the ESA medical, and a failure to participate in the ESA medical. In these circumstances
you will be found Fit for Work due a technical infringement, a Decision which can be
appealed. You are not entitled to any payments while you wait for a Tribunal hearing.

ESA appealing to be placed in the Support Group from the WRAG
You will receive the WRAG rate while you wait for a Tribunal hearing. See note below

DLA reduced award
Your DLA award has been reduced either at renewal or due to a re-assessment.
You will continue to receive the reduced rate(s) while you appeal.

DLA award removed
Your DLA has been stopped following a renewal or a re-assessment.
You are not entitled to any money while you wait for your Tribunal hearing.

Back payments
In all cases, should you win your Tribunal hearing, payments will be backdated to the
date they were stopped or reduced and you will be paid the difference between the
monies you actually received (if any), and what the payments would have been once the
Tribunal Decision is applied.

See note below

Note: If you are receiving Contribution Based ESA, then the 12 Month rule may limit the
period for which you can receive payments whilst appealing and any back payments
that you might receive from a successful appeal. If you also qualify for Income Related
ESA, then these restrictions should not apply.

								
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