Employment and Support Allowance (ESA)
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Do you know of any reasons for long Upper Tribunal delays?

gentlegee1976gentlegee1976 Member Posts: 34 Connected
Hi All,

Just a quick question. After being refused permission to appeal by the FTT, I applied directly to the Upper Tribunal for permission to appeal against the decision to stop my ESA payments. This is after I only got 12 points at my FTT hearing. I have CFS/ME and have had it for 8 years.

In September last year, I received a notice from the UT judge granting me permission to appeal, and giving his reasons for doing so. There were numerous reasons according to the judge, although, in his words, he said he has focused on one, arguably rather narrow issue which was the issue of the lack of coherence regarding the supersession from the previous decision that gave me LCWRA.

The case management directions said that -

1. The DWP representative is asked to provide a written response within one month of the date on which the notice is sent to the parties (that date being September 11th 2020).

2. I would then be asked to provide a reply to the DWP response, and would have one month to do so from the date on which that response was sent to me.

It has now been more than than 2 calendar months since the time limit for the DWP response expired (and a total of 90 days) and yet I have heard nothing back from the Tribunal Service at all.

Based on previous experiences, does anybody have any idea was to why things are taking so long and why I haven't heard anything back yet? It's stressful and quite frustrating for me to be honest.


  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger

    There's never really many threads on the community regarding UTT, although i have heard it can take as long as another 18 months. Although DWP are given a timescale, just like with the FTT they very often go outside that.

    I don't have any advice for you but i do wish you good luck and hope you're not waiting too much longer.
    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.
  • gentlegee1976gentlegee1976 Member Posts: 34 Connected
  • gentlegee1976gentlegee1976 Member Posts: 34 Connected
    The judge has allowed my UT appeal and has sent the case back to the FTT, with a new hearing in front of a different doctor and a different judge. I'm not sure what the success rate is for these new FTT hearings, I just need to wait for a new date/hearing.
  • tru88letru88le Posts: 145 Member
    Was just about to say  about 4 months  then noticed the update....
    I had the same news today.but neither happy or glad as it was expected.
    I'm interested to know if the judge said much about it but mine said seei g as everyone agrees there was an error the matter is returned to a new different panel.
    At least I have better evidence to back my case regardless of the dwp withholding some of it last time.
    They arent interested in gripes better using the time to support your case rather than dwell on previous errors which I did do last time.
    Good luck with your new hearing
  • mikehughescqmikehughescq Member Posts: 6,665 Disability Gamechanger
    Success rate for rehearings is the same as for first time around. No difference at all. However, your success rate is all that matters and that will absolutely depend on the competence with which you now present the case.

    There are also few delays at present so don’t be surprised if you’re listed pretty quickly. Having been through the process once this is the moment to get yourself a competent rep to try and ensure you don’t need to head back to UT. Remember even if your judge gave directions a new FTT is a complete rehearing from scratch and the new panel can ignore UT directions. Winning at UT also does not mean you will now win at FTT.
  • gentlegee1976gentlegee1976 Member Posts: 34 Connected
    My new FTT hearing is by telephone on 23rd Feb. I've put together a statement for the FTT reiterating a few important points and have now sent it to them. A few things to note are -

    1. The doctor sitting on my old FTT hearing completely ignored my diagnosis of CFS/ME, dismissing it as sleep apneoa. My diagnosis of CFS/ME has been confirmed, added to my medical records and accepted by my GP, so I don't see how they can get away with ignoring it this time around.

    2. The appeal is supported by the DWP (which is very surprising) who also agree there's an error of law.

    The statement that I have sent has been edited to remove all personal details and attached as a PDF for you to read should you wish to do so.
  • mikehughescqmikehughescq Member Posts: 6,665 Disability Gamechanger
    edited February 16
    A few observations.

    The DWP do not appear to be supporting your appeal. They appear to have supported your UT appeal. That’s not the same as supporting your appeal at FTT. If they supported your appeal at FTT then, to be blunt, they would have conceded and you wouldn’t be going to another FTT.

    A diagnosis is irrelevant for ESA as it is for other disability related benefits. The fact that one diagnosis was wrong is neither here nor there. All that matters is whether the symptoms you have are accepted as real and whether they in turn would lead to your scoring the appropriate points. Your haven’t addressed that, the single key point, at all. Instead you’ve argued that if you have diagnosis b rather than a then you ought to qualify because the person in another case had b. That’s not a great argument. 

    The lack of an improvement isn’t a basis for qualifying or retaining entitlement. It’s legitimate for two assessors to look at the same facts and draw different conclusions. You need to specifically forget the name of your condition; whether or not you’ve improved etc. and address which points you score and why.

    Irrelevant to the above but all the things you claim would not be caused by sleep apnoea are known symptoms of... sleep apnoea. 

    I’ve no idea whether you had a rep at your original appeal or UT but you need one now. Your sub is well written and presented but will be given little weight by the tribunal because it’s not addressing the issue at hand.
  • gentlegee1976gentlegee1976 Member Posts: 34 Connected
    edited March 18
    Hi All,
    Just a quick update, things have been hectic and I simply forgot to update you all. Sorry.

    My appeal was successful and I've been given LCWRA. An edited PDF of the Tribunal decision is attached. It shows no personal information. This appeal has taken 2 years to be resolved as I was declared fit for work in Feb 2019 at it was finally resolved in Feb 2021. I'm now led to believe that I'll get a significant back payment.

    I came across this statement on another post - 

    Then you will be owed backdated money of £341 per month since you started your UC claim. This is because the fit for work decision for ESA was incorrect, so there were no gaps in your claim. When you claimed UC you would have already had LCWRA and your ESA claim started before April 2017.

    If this is still true, then I'm owed around £8,100 (24 months at £341 per month). Will they pay it to me and how do I ensure that I get it. My appeal was allowed just over 3 weeks ago.

  • calcotticalcotti Member Posts: 2,280 Pioneering
    edited March 18
    I think you need to wait for ESA to contact you about the decision and arrears payment. Then tell UC about the decision and ask them to review your UC entitlement since the start of the claim.

    What is the existing status on your UC claim?
    Information I post is for England unless otherwise stated. Rules may be different in other parts of UK.
  • gentlegee1976gentlegee1976 Member Posts: 34 Connected
    edited March 18
    I'm still claiming UC and I've now been given LCWRA. A copy of the tribunal decision notice was sent to the DWP via my UC work journal the day after the hearing.
    My DWP contact (not my work coach) is waiting for the additional component to be added to my existing claim. He mentioned something to me about waiting to hear from the ESA dept.

    Thank you for your help by the way !!
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