Upper Tribunal appeal

Hi Everyone

Yesterday I saw a Benefits Advisor regarding my IB appeal to the Upper Tribunal. Without intending any disrespect to the advisor who I know works for a very good agency, I did not have much confidence in her when I realised she didn't know the difference between a Statement of Reasons and a Record of Proceedings. She said she didn't feel I had much of a case but when I mentioned Regulation 27(b) (exceptional circumstances) and other points of law, she was unaware of what they were.

So I'll have to throw this question to the Benefits & Work forum. I would be very grateful if anyone can confirm or reject any of the following points.

1. If you make a case in your appeal statement that you satisfy Regulation 27(b), Tribunals are obliged to give reasons for disagreeing in the Statement of Reasons.
2. If you do not claim a physical disability on the IB50 but claim it on appeal and explain why you did not tick the box, Tribunals are still required to give reasons for not awarding the descriptor.
3. If you argue in your appeal statement that you satisfy a descriptor, Tribunals have to explain why they rejected your arguments rather than say ‘no evidence the descriptor applies’.
4. Burden of proof (tricky one). If you have an award for a particular descriptor (past medical) and you claim that your condition has not changed, the burden of proof lies with the Secretary of State. I believe this means Tribunals have to look for evidence of an improvement in health rather than starting from scratch and looking for evidence that you have the disability.

Please send a post if you have any answers, but the first point is probably the most important.

Thanks

Derek

DepressedDerek wrote:

Hi Everyone

Yesterday I saw a Benefits Advisor regarding my IB appeal to the Upper Tribunal. Without intending any disrespect to the advisor who I know works for a very good agency, I did not have much confidence in her when I realised she didn't know the difference between a Statement of Reasons and a Record of Proceedings. She said she didn't feel I had much of a case but when I mentioned Regulation 27(b) (exceptional circumstances) and other points of law, she was unaware of what they were.

So I'll have to throw this question to the Benefits & Work forum. I would be very grateful if anyone can confirm or reject any of the following points.

1. If you make a case in your appeal statement that you satisfy Regulation 27(b), Tribunals are obliged to give reasons for disagreeing in the Statement of Reasons.
2. If you do not claim a physical disability on the IB50 but claim it on appeal and explain why you did not tick the box, Tribunals are still required to give reasons for not awarding the descriptor.
3. If you argue in your appeal statement that you satisfy a descriptor, Tribunals have to explain why they rejected your arguments rather than say ‘no evidence the descriptor applies’.
4. Burden of proof (tricky one). If you have an award for a particular descriptor (past medical) and you claim that your condition has not changed, the burden of proof lies with the Secretary of State. I believe this means Tribunals have to look for evidence of an improvement in health rather than starting from scratch and looking for evidence that you have the disability.

Please send a post if you have any answers, but the first point is probably the most important.

Thanks

Derek

I will answer your questions in the order they appear:-

(1) If Regulation 27(b) of the The Social Security (Incapacity for Work) (General) Regulations 1995 is raised expressly as an issue in an appeal before the appeal tribunal, it must be taken into account. It is correct that if Reg 27(b) is put at issue, the tribunal are obliged to give reasons as to why it does not apply to an appellant? Failure to do so may potentially be an error of law.

(2) If a physical descriptor is first raised at an issue on appeal and was not material to the decision under review, ie was not included on an IB50 and therefore unable to be taken into account by the IB decision maker, the tribunal are not required to take it into account. The reason for this is because the tribunal are only able to look down to the date of the decision under appeal. If the physical condition happened after the decision was made, or you simply forgot to include it on the IB50, in all probabilities it would not constitute an error of law.

(3) If you argue that a particular descriptor applies in your grounds of appeal, the tribunal are obliged to take it into account. It is also not acceptable to state that the descriptor does not apply without giving (adequate) reasons. There is a potential error of law in that the tribunal failed to give any or adequate reasons for their decision.

(4) Many Upper Tribunal Judges are of the opinion that if an appellant previously satisfied particular descriptors at a previous PCA and the appellant maintains that their condition has not improved, details of the previous PCAs should be placed before a tribunal, although this is not an absolute requirement.

If you have previously satisfied the PCA and it is found that this no longer applies, the burden of proof lies solely with the IB decision maker and not the appellant. However, it is always preferable to obtain medical evidence to counteract what the medical assessor has said in their report, which will invariably be used as evidence by the IB decision maker. You need to bear in mind however, that this must pertain to the time when the adverse decision was made.

Thanks a lot Crazydiamond. That is very helpful and useful information.

Derek