Employment and Support Allowance (ESA)
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Upper appeal

Hi, I received a letter confirming that the upper appeal has allowed my appeal & it has been referred back to 1st tier tribunal,there was a error in law which was pointed out. Can anyone tell me what happens now. This has took over a year to get to this stage & it's driving me insane, thanks in advance 

Replies

  • TopkittenTopkitten Member Posts: 1,263 Pioneering
    I had to appeal to the upper tribunal for the same reason however, my case was so obvious that the clerk to the higher tribunal decided it instead. The ruling was that I would get a new appeal and that the persons involved in the first decision were not allowed to be involved. The new appeal went through correctly and without problems, The date for the decision was back-dated to the original application 18 months before. I just had to wait for a date to be allocated to my case and then attend the tribunal as before.

    TK
    "I'm on the wrong side of heaven and the righteous side of hell" - from Wrong side of heaven by Five Finger Death Punch.
  • Nicol1Nicol1 Member Posts: 11 Listener
    Thanks for replying top kitten, so I will need to go to a other appeal? How long did it take for you to get another date? 
  • mikehughescqmikehughescq Member Posts: 5,333 Disability Gamechanger
    Topkitten said:
    I had to appeal to the upper tribunal for the same reason however, my case was so obvious that the clerk to the higher tribunal decided it instead. The ruling was that I would get a new appeal and that the persons involved in the first decision were not allowed to be involved. The new appeal went through correctly and without problems, The date for the decision was back-dated to the original application 18 months before. I just had to wait for a date to be allocated to my case and then attend the tribunal as before.

    TK
    Clerks to the upper tribunal can’t decide anything. It sounds more like you applied for leave to appeal but it was treated as a set aside application on an obvious point. 

    Anyway, what happens next is that you get out in the queue for a new listing but get priority. So, if you have any limits in your availability in the next 3 months now is the moment to tell HMCTS. You may also need to tell them if you have a representative, even if you did last time. If you didn’t have one last time it would be wise to get one this time. 

    Your UT decision may give specific directions. The new tribunal do not have to follow them and they often disregard them if they disagree. The new panel must be, as @Topkitten says, completely new.
  • Nicol1Nicol1 Member Posts: 11 Listener
    Thanks Mike, hopefully don't have to wait too long .
  • TopkittenTopkitten Member Posts: 1,263 Pioneering
    I appreciate that clerks are not supposed to decide anything but the "Statement of Reasons" was so laughable that this one did to save wasting the time of those that would decide. The letter was from the clerk, signed by him and sent to my representative who worked for CAB.

    The waiting time for my new appeal was around the normal waiting time that was then being taken but I can't remember now what it was. It was a DLA claim and the delays were much shorter then.

    TK
    "I'm on the wrong side of heaven and the righteous side of hell" - from Wrong side of heaven by Five Finger Death Punch.
  • mikehughescqmikehughescq Member Posts: 5,333 Disability Gamechanger
    Er, all HMCTS lettters are from clerks. Every one. Always have been. Doesn’t mean they had anything to do with the decision in question.
  • angel137angel137 Member Posts: 51 Courageous
    Mikehughes
    How do I bookmark this page?
    My appeal in papers was dismissed. No reasons given. Considering appealing. But if it gets sent back and I'm still unable to attend a hearing, is it worth it? 
  • mikehughescqmikehughescq Member Posts: 5,333 Disability Gamechanger
    @angel137 I can’t tell you how to bookmark this page. Depends on your device and browser. When you talk about your appeal on the papers are you talking about first tier or upper?

    Bottom line is that it’s always worth attending a hearing as it vastly increases your chances of winning if you have a winnable case. If you can make it to your GP, hospital etc. then you need to make it to an appeal hearing as it’s equally as important.
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