First Tier Tribunal ESA Decision HELP.
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shanz8906
Community member Posts: 2 Listener
Hi all just looking for some advice and understanding of an appeal decision notice I have just received I’ll try put in as much info as I can.
So the appeal decision notice says
The Appeal is allowed
The decision made by the Secretary of State is set aside.
***** has limited capacity for work the matter is now remitted to the Secretary of State to make a final decision upon entitlement to ESA.
This is because insufficient points were scored to meet the threshold for work capability assessment but regulation 29 of the ESA Regulations 2008 applied.
16. Coping with social engagement due to cognitive impairment or mental disorder.
c. Engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the individual. 6points
No schedule 3 descriptor applied. Regulation 35 of esa regulations 2008 did not apply.
by reasons of the conditions listed ********* is significantly limited in particular in relation to depression and anxiety. Nevertheless he does not score sufficient points. However if he were found capable of work this would result in a substantial risk of deterioration of his metal health in reaching its decision the tribunal placed reliance upon the evidence of *******at the appeal bundle.
Any recommendations given below does not form part of the tribunals decision and is not binding on the Secretary of State.
The tribunal recommends that the department reassess ******** within 12 months from today’s date.
So my understanding is that as there was not enough points scored regulation 29 means you now have enough points.
My questions are is this correct and what group will I be put in as I believe that I meet 2 of the descriptors for the support group any help would be much appreciated as been waiting a long time for this and it’s bor very straight forward to understand thanks in avance for any advice.
So the appeal decision notice says
The Appeal is allowed
The decision made by the Secretary of State is set aside.
***** has limited capacity for work the matter is now remitted to the Secretary of State to make a final decision upon entitlement to ESA.
This is because insufficient points were scored to meet the threshold for work capability assessment but regulation 29 of the ESA Regulations 2008 applied.
16. Coping with social engagement due to cognitive impairment or mental disorder.
c. Engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the individual. 6points
No schedule 3 descriptor applied. Regulation 35 of esa regulations 2008 did not apply.
by reasons of the conditions listed ********* is significantly limited in particular in relation to depression and anxiety. Nevertheless he does not score sufficient points. However if he were found capable of work this would result in a substantial risk of deterioration of his metal health in reaching its decision the tribunal placed reliance upon the evidence of *******at the appeal bundle.
Any recommendations given below does not form part of the tribunals decision and is not binding on the Secretary of State.
The tribunal recommends that the department reassess ******** within 12 months from today’s date.
So my understanding is that as there was not enough points scored regulation 29 means you now have enough points.
My questions are is this correct and what group will I be put in as I believe that I meet 2 of the descriptors for the support group any help would be much appreciated as been waiting a long time for this and it’s bor very straight forward to understand thanks in avance for any advice.
Comments
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Hi @shanz8906, and welcome to the community!
Sorry to hear that you're going through the appeals process. Just to clarify, are you now waiting on a date for your appeal?
It's very difficult to predict what group somebody will be put into ahead of time, however it sounds as though you're aware of the descriptors and how they apply to you. You may also like to take a look at this DR-UK guidance on ESA appeals, and I'm sure some of our community members will be able to share some tips too.
Do keep us updated and we'll advise where we can! -
Hi shanz8906,
The tribunal scored you 6 points and you need 15 to win an appeal, so you did not score enough points. However, regulation 29 provides for someone who doesn't score enough points to still win their appeal if being found not to have limited capability for work could lead to a substantial risk to the physical or mental health of yourself or someone else.
In English, you didn't score enough points but the tribunal decided that if you were found fit for work (and had to do everything that entails) it could lead to a substantial risk of your physical or mental health getting worse. You have been put in the work-related activity group.
If you look at the support group descriptors, these generally relate to the 15 pointers in the schedule 2 descriptors. Regulation 35 provides for someone who doesn't meet a support group descriptor to be put into the support group if being asked to do work-related activities could lead to a substantial risk of the claimant's physical or mental health, or that of another. The tribunal didn't think that regulation 35 applies in your case. It sounds as though you disagree with the decision as you identify support group descriptors that the tribunal haven't accepted, so if you want to take it further you can ask for a statement of reasons and try to find an error of law in its reasoning.
If you were successful in getting this appeal decision cancelled by identifying an error of law, you will most likely have to go back for another hearing in front of a completely different panel, who will start again from scratch, and who would have the power to either put you in the support group, work-related activity group or even fail your appeal altogether.
LeeThe Benefits Training Co: -
Hi and thank you for your reply I thought that was correct but was a little confused as 16.C how I’ve received my 6 points also covers discriptor 13 for the support group.
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