nevip
welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since 22nd Jan 2004
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RE: ESA- Exceptional Circumstances
Thu 03-Sep-09 03:21 PM |
My approach at ICB appeals has always been to outline, orally, at the hearing which descriptors I want the tribunal to look at and then, in an appropriate case, put forward the exceptional circumstances argument as a back up.
I have had tribunals make decisions to allow appeals on exceptional circumstances at the outset of the hearing. Fine by me, in and out in less than 5 minutes, minimum stress for client.
I haven’t done my first ESA appeal yet (although have a good few cases waiting for listing) but I have had 2 decisions revised prior to the hearing, one, funnily enough, on your exceptional circumstances argument. Client went straight into the support group. However, my approach at the hearing will be exactly the same for ICB but also to outline any LCFWRA descriptors that I thought applied.
Because the DWP have already determined that the claimant does not have LCFW and LCFWRA then If a tribunal finds as a fact that “there would be a substantial risk to the mental/physical health of any person if client found not to have ltd capability etc...” whether at the outset of the hearing or after going through the descriptors and failing to award 15 points then it has no option but to find that the claimant has LCFW and LCFWRA. That is all that the tribunal does. The decision then goes back to the DWP to put the claimant in the support group. The DWP will have no option but to do that.
The tribunal can go through the LCFW descriptors solely or the LCFW and the LCFWRA descriptors or not go through any of them at all but so long as it finds in fact that “there would be a substantial risk to the mental/physical health of any person if client found not to have ltd capability etc...” then the claimant goes straight into the support group.
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