6.1. General Form, Content and Purpose of Submissions

Purpose of the Submissions

The bulk of the submissions form a written account of the Appellant’s eligibility, as narrated by them to their representative. Whilst they can be used by the Tribunal as evidence, the submissions usually act to guide the Tribunal in their questioning of the Appellant at the hearing. By setting the direction of the questioning, the submissions ensure that the oral evidence elicited from the Appellant gives a full account of their eligibility, matching that which was relayed in the submissions. It is usually then the oral evidence which is then formally used by the Tribunal to make its decision.

It is important to remember that the Tribunal’s function is to carry out a complete redetermination of the facts and merits of the case, not merely review the previous decision. In light of this, the submissions should make clear which Activities and Descriptors are in dispute and which are not, but should briefly justify even Activities/points that are agreed upon by both the claimant and the DWP. Submissions may argue for different activities and descriptors than previously asserted by the client in the rest of their paperwork; this is an artefact of clients often not receiving advice until the appeal stage.

General Form of the Submissions

Judges have given informal feedback that submissions should not normally exceed 5-6 pages in length. Case law should not be overused – only when highly pertinent to the case.

The background is useful to give a short summary of the Appellant’s most serious conditions, their major treatments and interventions and the general impairments caused.

It is often worth having a brief section at the end of the submissions to address any major inaccuracies in the assessor’s report (e.g. “the Appellant does not in fact golf every weekend, but stated, since she has been unable to play for the last ten years, that she occasionally watches her friends play golf at the links”). It is extremely common for our clients to dispute almost every point in the assessor’s report and if this is the case the multiple points of dispute should be covered with as much brevity as possible.

Common Mistakes in Approach

A scatter gun approach

Appellants can feel an urge to try to tick every box and meet every criterion. You may need to explain that “reaching” for descriptors that don’t really apply to them is unnecessary, and risks making them look less credible to the Tribunal when it comes to arguments for descriptors that apply to them strongly.

“I can manage”

Some clients consistently understate their conditions and overstate their abilities, with a “I don’t like to complain” attitude. Probing questions may be needed to see if tasks could be carried out consistently and to an appropriate standard.

Misunderstanding of how to describe fluctuating symptoms

For what proportion of the time an impairment is present is highly important when applying descriptors (see later). Clients are not usually used to talking about their symptoms in this contrived way, and so asking them for how many days out of a week, or out of a month they are affected may help.

The Tribunal will consider if the original decision was made correctly, based on the impairments they believe would have been experienced by the Appellant at that time. They will consider evidence that was not available to the original decision-maker, including evidence which has been created since the time of the original decision. They are not able to take into account an Appellant’s new level of impairment following the deterioration of their health. In the vast majority of cases, evidence created since the time of the decision will pertain to chronic conditions and impairments that are unchanged since the original decision and can be submitted.

Relevance of Other Disability Benefits

If the appeal concerns ESA, it should be noted in the introductory material whether the Appellant also receives PIP and at what levels, and vice versa if the appeal concerns PIP. In most circumstances, paperwork concerning the award of the other benefit (from the DWP or a tribunal decision notice) should be sourced from the Appellant and submitted as additional evidence. There is particular crossover between the two benefits as regards the ability to mobilise, but the the previous application of various activities and descriptors can have indirect bearing on a case.

Last updated on February 20th, 2019 at 12:29 pm