Employment and Support Allowance (ESA)
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ESA tribunal advice please!

susie123susie123 Member Posts: 17 Listener
I was wondering if someone could help me with a query? It's about employment support tribunral for my husband. He's due at court soon  after we appealed for esa to be reinstated. I don't hold much hope out for it. At the medical assessment  the woman barely looked at my husband and then a full report came back that he was for for work! He most certainly is not fit for work and  all of this has made him even more stressed.  Even the doctor aggrees. I'm starting  to wonder if it's worth putting him through all this. At the moment we are on income support this is because our youngest child has adhd and autism and I get carers for my son.  My husband also gets pip ( just got it through, standard care, enhanced mobility)  my query is what if he gets turned down for esa? Will we get to stay on income support? Money is tight enough as it is , it's a huge worry at the moment.  This was is a minefield. 
Any advice would be greatly appreciated, thank you. 

Replies

  • thespicemanthespiceman Member Posts: 6,408 Disability Gamechanger
    Hello @susie123   Pleased to meet you welcome.

    Thank you for sharing. Sorry what has happened. I am sure a member of our community will advise or a member of our team.

    Have a look at our benefit advice . Could be an answer there.

    Understand the situation and problems.  Have you spoken to CAB about it. The benefit system is complex and confusing.  They have a wealth of information and knowledge on benefit queries. Might be worth contacting.

    We are a supportive, friendly community. Care and share.

    Lots of information, advice and plenty of new friends.

    Hope that helps.  Wish you the best for a successful outcome.

    Take care

    @thespiceman
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  • RipplesRipples Member Posts: 189 Pioneering
    Who is helping you with your husband's appeal  or representing you at the tribunal?
  • susie123susie123 Member Posts: 17 Listener
     Thank you both for your replies its very kind of you. No we dont have representation. I'm not sure what we should be doing. I've collected loads of paperwork from doctors consultants but don't know who to contact for help. If it comes down to money  for help we don't have spare cash.  We have never been on benefits before this has been a huge shock to us. Esa is a minefield at best . It's scary stuff.
  • RipplesRipples Member Posts: 189 Pioneering
    @susie123 You could do with some outside help, I would advise you to contact Citizen's Advice or look for Welfare advice locally these are free services. It's good to have evidence of the disabilities but what any tribunal wants to know are the effects your husband has because of his disabilities on a daily basis. It's a good idea to attend the tribunal in person.
  • susie123susie123 Member Posts: 17 Listener
    Thank you ripples for your reply. Yes I do need outside help. I feel like I am out of my depth.
    My husband has had and still having different tests to see what the cause of his pain is. He can't get around too good for the pain he is in. The doctor says he's not fit for work and she's been very supportive.  The pain is getting worse and affects him.on a daily basis. This has all happened in the past year after an operation. Now he is suffering from depression which is making the pain worse. He doesn't want to do anything or go anywhere. Most days I can't get him out of the house. He's on umpteen medications as he has diabetes, arthritis, bowel problems and I really don't see 58 as old. He used to be be so active, he had a demanding job as a health care assistant so he had to be physically fit for the job, now he's just a shadow of his old self.  The assessor that we saw for esa medical didn't write down anything what we told her, everything we said was twisted. Yet the assessor pip could see he had big problems in his mobility and his depressive state.  My big worry is that I don't think he can cope with been asked questions at the tribunral. Yes I agree he needs to be there in person bit on a website I looked at it said the questions would have to be answered by him.and I couldn't answer for him.
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    Hi,

    Yes, it's true that he'll have to answer the questions at the Tribunal himself. The only time a person can answer questions for a claimant is if they're their appointee. You maybe asked if there's anything you want to add at the end but that's about all. The Tribunal will want to hear in his words exactly how he's affected by his condition. Those that appear in person have the best chance of a decision going in their favour.

    Have you have a look to see what the descriptors are for the Support Group? This is the best place to start so you at least know what to aim for. Being placed into the Support Group is about satisfying at least one of the support group descriptors, rather than scoring points. I agree about getting some help with all of this. Good luck.
    Community champion and proud winner of the 2019 empowering others award. This award was given for supporting disabled people and their families for the benefit advice i have given to members here on the community.
  • mikehughescqmikehughescq Member Posts: 5,934 Disability Gamechanger
    Some stuff on tribunal hearings and representation you may find useful.

    1) Concentrate wholly on what you were like on the date of claim.

    2) There are no “trick” questions. Tribunals are usually listed 20 minutes apart so, apart from the appeal papers, they need questions which cut across lots of functions. So the car question is brilliant because it indicates grip; mobility; dexterity; the ability to do something repeatedly; concentration and stamina. Instead of thinking negatively about such stuff think about what they’re getting at and your answers will be much better and more detailed. Similar questions include whether you’ve been on holiday recently. It feeds into mobility (getting across an airport); stamina; the ability to cope alone; the need for aids and appliances.

    3) There are no set rules or order for a hearing beyind the requirement that it must be seen to be fair. 

    4) Watch the judge’s pen. All three members may take notes but only the judge writes a record of proceedings. If you don’t want them to miss anything then remember that they can’t write as fast as you can speak, so watch their pen and slow down. Don’t worry about going too slow. They will tell you if you do.

    5) Never interrupt any tribunal member. It is perfectly okay to challenge them provided it’s not rude or aggressive. However, think about whether what you’re challenging them on is directly related to points. If it’s not then better to focus on points. This is especially important because loads of people second guess the demeanour of tribunal members as determining whether they are pro or against and it’s largely nonsense. An aggressive, challenging member may well just be a poor communicator and wholly on your side right up to the point you challenge them etc.

    6) Get yourself a representative and travel to the venue by whatever means makes you feel comfortable. It’s only ever an issue if you don’t explain what you did in full and if doing so contradicts your other evidence in some way for daily living and /or mobility.

    7) Same goes for clothes. You need to wear whatever makes you feel comfortable and relaxed. If you’re not relaxed then the likelihood of you presenting well are much reduced. Dressing down is not a good idea unless that all you can afford. A person who feels naked without make-up or a suit abd tie will similarly be over stressed if they try to pretend they’re in their comfort zone dressing down. 

    8) Other people’s tribunal experience can be valuable but it’s just that. Their experience. If they lost then it’s the tribunal to blame. If they win they everything they did is why they won and what you must do. The truth is usually very much in between.

    9) Know your case. What points are you going for and why. What’s your evidence? “The HCP was a liar” is neither evidence nor a winning strategy. Also, know the appeal papers. What’s where. 

    10) Do not be tempted to claim you’ve worsened since the date of claim. That’s a recipe for a failed appeal and an invitation to make another claim. Even if you have got worse always concentrate on your date of claim and what you were like then.

    You can be 

    - a representative - you don’t talk for the appellant because they’re there but you do get to outline what award you’re looking for and what the legal case is as well as pick up on any issues the tribunal or appellant miss or misinterpret.

    - observer - sits away from the tribunal but you are watching only. You do not and cannot take part.

    - witness - you give your own evidence to support the appellants own case. You don’t get to comment on anything else. You watch silently, do your bit and you’re done.

    - appellant - the person making the claim being appealed. The only person allowed to present their evidence and answer questions on it unless they have an appointee. 

    Most family members struggle to be observers as it’s hard to be silent. They struggle to represent as they don’t know enough of the law, case law or guidance and confuse the role with speaking for the appellant and get shot down in flames to the detriment of the case. They often make poor witnesses as they haven’t been prepared by a rep and want to rehear the whole case instead of focusing on what they know. 

    The temptation to talk for any appellant needs to be resisted. You’ll always get people saying “but...

    - they’re not articulate.

    - they’re nervous.

    and many orher arguments. Bottom line - nothing makes the case for the consequences of someone’s ill health better than a poorly appellant. 

    The other side of having representative is that, as you’ll read on here, people get incredibly stressed with the process; what comes when; what letters mean; what is good evidence; what will happen on the day. A good rep explains all and covers all the bases. It’s typical that people think representation is just about what happens on the day and the outcome. That’s about 10% of what gets done. A good rep should also keep you off web forums (seriously). All your questions should be answered by them. If people come on here because they need answers and they have a rep. that is concerning. 

    Now, having said that, tribunals are inquisitorial so it’s perfectly possible to win a case without a rep just as it’s equally possible to lose a case with a rep. However, a badly presented case can win with a decent tribunal but won’t with a poor one People who have won without representation tend to almost always ascribe this to something they did rather than the skill of the tribunal pulling out what was relevant. Having seen tribunals over three decades, including many times as an observer, it’s almost never the case. I’ve never yet heard of anyone unrepresented winning two tribunals for themselves. 

    Finally, don’t confuse an organisation with a good reputation as meaning all their reps will be good. Good organisations have bad reps. Reputationally poor organisation have good reps. How can you tell? Walk away from anyone who wants to tell you their success rate? It’s a fave tactic of organisations that charge but also of inexperienced or renegade/boastful reps. That tells you that they’re either lying or cherry picking only cases which are clear cut winners and probably would be anyway with a decent tribunal and without them. Good reps do not guarantee a win but they will take in winnsble cases rather than likely winners and they’re the more likely to turn a marginal case into a winner. They’ll also know their law, case law and guidance and be able to cite it but in plain English. 


  • susie123susie123 Member Posts: 17 Listener
    Hi thank you both for your comments. So much to take in. He is so stressed at the moment, doesn't want to go out and the thought of another face to face, even meeting new people is a nightmare for him. He definitely needs to go I know that, getting him there is a problem. The tribunral will be held in our local court so no buses ( he hates public transport the assessment medical proved that.  The assessor said that he travelled by bus he was capable of anything. It was my suggestion to get the bus. As it stops outside our house. Of course i didn't really count on how far the walk was from the bus stop to assessment centre. It was good that we arrived at the centre early as it took nearly half an hour for him to.walk to the place. We explained this to her but she wrote  he walked fine.  He was in bed three days after that as he had walked to much and was in a great deal of pain.) when we went for pip medical we got a taxi to the door as it was further again but at least it wasn't as stressful.
  • susie123susie123 Member Posts: 17 Listener
    If he got turned down for esa at the tribunral would they stop his pip?
  • mikehughescqmikehughescq Member Posts: 5,934 Disability Gamechanger
    No. Unrelated. However, it may trigger a review. 
  • susie123susie123 Member Posts: 17 Listener
    He's only had it a few months
  • RipplesRipples Member Posts: 189 Pioneering
    @susie1123 Do you know how long the award was for?   They wouldn't just stop PIP, I would just concentrate om the ESA claim for now.
  • susie123susie123 Member Posts: 17 Listener
    The award she May 2020 So I take it that's when next review is. This whole ESA    Has got me so stressed. I don't know if he will even be able to speak at the tribunral because he has bad anxiety.  Plus his condition has gotten worse but they won't take that into account will they as they just want to know about the day of the assessment. 
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    PIP is reviewed 1 year before the award is due to end, in most cases. If his PIP is until May 2020 then review will be May 2019. Have a look at the award letter and it will tell you on there when the review is. 

    A Tribunal can't take into consideration a worsening of condition no. They will only take into consideration what he was like up until the original decision was made.
    Community champion and proud winner of the 2019 empowering others award. This award was given for supporting disabled people and their families for the benefit advice i have given to members here on the community.
  • susie123susie123 Member Posts: 17 Listener
    So does that mean we would have to reapply for esa again because of his condition being worse?
  • RipplesRipples Member Posts: 189 Pioneering
    susie123  What they want to know is what his day is like, how his life affected by his disabilities and mental health state. See this as a different form of assessment if you like they aren't there to catch you out as it were but to see the claimant themselves and judge for themselves based on the evidence presented and talking to your husband. 
    If you haven't already you might like to talk to  Citizen's Advice.
  • susie123susie123 Member Posts: 17 Listener
    Thank you for your comments, at least I'm a little clearer now on what goes on at the tribunral.
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