In this blog post, we briefly talk about the Employment Support Allowance tribunal. We highlight what happens on the day of the ESA tribunal, how a decision is made and what is the average ESA tribunal waiting time one should expect.
What is the average ESA tribunal waiting time?
On average, the ESA court waiting time in 2018/2019 was 29 weeks. This number has increased alarmingly compared to previous years. The lowest waiting time for the ESA tribunal was registered in 2016 with only 14 weeks, followed by 2015 with 17 weeks of waiting. In just one year, from 2017 with the average waiting time of 20 weeks, we have 29 weeks, according to the latest data.
In addition, in some areas such as Wales and Yorkshire, the waiting term is different, with delays of up to 40 weeks, or even longer.
We could consider that the number of weeks of waiting is directly proportional to the number of ESA appeals, which has increased considerably in the past years.
The Employment Support Allowance tribunal
The Employment Support Allowance tribunal hearing is just another formal meeting.
The tribunal panel will hear the claimant’s case and all the evidence there is to support it. The hearing panel has three members: the Judge, a Doctor and a Disability Adviser (someone who knows a lot about disability). Some cases are different, so they can be heard only by a Judge. In other cases, a member of the DWP can be present too, and they can argue how the decision was made.
The purpose of the appeal is to verify if the DWP has made the right decision and whether there is a mistake in the middle.
The appeal is a great opportunity for the claimant to be heard and understood.
At the ESA tribunal, many claimants argue that their condition has worsened and this is why the decision-maker was wrong They forget, however, that at the appeal the panel judges how the claimant’s condition was at the moment of the claim. The panel’s questions should be about that period, too. If the claimant’s condition has worsened, he or she should make a new claim.
Like we said, this is not a common trial with a jury and lawyers. It is perhaps a more friendly environment. The panel will ask the claimant questions in order to better understand the facts and how the disability affects the claimant’s day-to-day life.
Considering the fact that someone’s disability is a sensitive subject, the panel will make sure to ask the questions in a more tactful way. The appellant should not feel embarrassed and answer the questions as clearly and honestly as possible.
If there is inconclusive evidence, the Judge may ask for further clarification.
How is the decision made?
After hearing the case and going through all the evidence, a decision is made. Neither the appellant or the DWP member cannot be present at this moment, as it should be done in private, by the members of the panel only.
Sometimes decisions are made in a few minutes, sometimes the case requires more thought. The claimant would receive the panel’s decision either that day or through an official letter within a month. The decision is always followed by a written decision notice.
If someone disagrees with the First-tiers tribunal’s decision, they can ask for a statement of reasons and find whether there was a mistake in law. If this is the case, the option to appeal to the Upper Tribunal can be the appellant’s next step.
Further appeal to the Upper Tribunal
How to start your appeal
If the First-tier Tribunal made an error in law, you can submit a request for an appeal at the Upper Tribunal. For this, you first need permission for appeal from the First-tier Tribunal, and they can say no. If this is the case, you have to go directly to the Upper Tribunal with another request. As always, there is a timeline you have to respect, you have to start the appeal within one month of the decision you are arguing against.
What happens next?
What happens next is that your case is registered in the Upper Tribunal’s database. You will receive a letter in the post containing your personal case reference number. This number is especially useful in linking all the evidence and information there is about your case.
Next, a request is made for your file to get transferred to the Upper Tribunal and that it is assigned to a Judge. This process may take up to a month, making the wait harder on the claimant.
The Judge is the person who looks at your file, more exactly, at how your First-tier hearing went. The Judge then will decide whether there was or not a mistake made. You will receive a letter as soon as the Judge has decided, informing you of the outcome and what you should do next. You must read that letter carefully. Ask for professional advice if you find it hard to understand.
How do you get a decision?
As soon as the Upper Tribunal Judge makes a decision, it is sent to all parties involved in the case. You will find the decision sooner or later than de DWP, as it is sent at the same time and in writing only.
The original signed paper with the decision remains in the Upper Tribunal file. The parties can only receive a copy of the decision letter.
Once you receive the letter, the Upper Tribunal has no other involvement in the case. They are not obliged to follow up and make sure that the decision is implemented.
As a piece of advice, once you receive your copy, you should ring the DWP and ask if they have received their copy too, this could speed up the process if you have to receive back pay.
If the UT decided that your case should be reviewed by the First-tier Tribunal again, you should cooperate with them instead.
Can you claim benefits during your ESA appeal?
You can still claim ESA even if you are appealing the DWP’s decision, however, there are certain conditions you must satisfy.
First, you will not be paid ESA during your appeal if at the reassessment stage you claimed other benefits such as Universal Credit or Jobseekers Allowance.
Second, if you want to go back to ESA, you must provide fit notes to the Department. The medical certificates should cover and be backdated including the mandatory reconsideration period. You don’t need to make a new claim for ESA in this case, but you still have to contact the DWP and follow their indications.
In this blog post, we talked about the Employment Support Allowance tribunal. We highlighted what happens on the day of the tribunal, how is a decision made and what is the average ESA tribunal waiting time one should expect.
In summary, you must be ready and extremely patient as the whole process from begging to end may take sometimes several months.
Please feel free to leave any comments on the content or questions in the comments section below.
FAQ about ESA tribunal waiting time
How long wait for the DWP tribunal?
On average, claimants have to wait seven months for the DWP tribunal hearing – of which 74% end in victory against the DWP.
How long after winning ESA appeal do I get payment?
You will get payment in 5 to 8 weeks after winning your ESA appeal. This will be from the date of the Decision that found you Fit for Work to when your ESA goes back into payment.
What happens if I win my ESA tribunal?
If you win your ESA tribunal you will be placed in either the Support Group or the Work-related group. You will also receive back pay from the date that you started your ESA claim. It’s important to mention that your ESA won’t be paid during your appeal if you claimed another benefit during the reconsideration.
On what grounds can DWP appeal a tribunal decision?
DWP can appeal a tribunal decision as you can if they disagree with the final decision. In order to appeal a tribunal’s decision, the claimants have to show that it made an ‘error of law’. This should be done within a month of the decision – the letter from the tribunal tells you how.
What happens at a tribunal hearing?
At a tribunal hearing, your case and the evidence sustaining your case will be analyzed. Most tribunal hearings are held in large rooms, rather than formal courtrooms. After the opening statements, the tribunal will invite the parties to call their witnesses to give their evidence (witness statements are no longer read out by a witness).
How do you address a tribunal member?
You can address a tribunal member as ‘Mr’ and ‘Ms’ and the Member’s surname. The Tribunal Member will sit at the front of the hearing room. The parties presenting their case sit facing the Member at tables.
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