nevip
welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since 22nd Jan 2004
|
RE: ESA Appeal insufficient evidence
Fri 12-Feb-10 12:59 PM |
It’s often tempting to undercut the decision under appeal on some procedural ground and in the past there was often plenty of scope to do so. However, over the years the commissioners and the courts have severely restricted these types of arguments and increasingly stressed the inquisitorial function of tribunals and the lack of formal requirements that matter more in the courts.
Previous IB50’s are often missing in appeal papers and tribunals usually can deal with cases without them. However, if an appellant alleges there has been no or little change since a previous assessment then tribunals have been warned that it would be prudent to adjourn and request production of the missing IB50. But, where a previous one cannot be found or where the current one cannot be found then that will not render the DM’s decision less effective, largely because the appellant will have had the chance to explain his problems to the doctor at the medical and a DM has sufficient ground in law to supersede the last awarding decision if he has a report from an approved doctor.
The tribunal, therefore, stands in the shoes of the DM and holds a complete re-hearing of all the issues and considers all evidence available to the DM at the time and any evidence since obtained by and from whatever source providing it has probative value.
I, personally, would concentrate on the substantive issues, obtain the best medical evidence I could from my client’s own doctors to challenge the IB85. I have won many ICB appeals with little or no supportive evidence but simply on my client’s testimony and credibility on the day.
|