Quite frankly I’d love to be able to find some work, I hate trying to survive on benefits, hate being made to feel like the scum of the earth. So if you can find me a job, excellent. Personally I’d be amazed at any employer who would hire someone who may turn up for work on the first day, but may not be back again, ever.
This system of assessment is unjust and unfair and I wish those who choose to work within it could see the harm they do to people lives, it’s not right.
Sue swallowed deeply, and placed the papers, that shook a little less, back on the desk. She’d said her piece, she’d done it, no matter what happened at least they knew how she felt. Her mum had once said to her that she couldn’t really blame the Judges and Healthcare Professionals working for TOST, Sue had replied that yes, she damn well could. These were people who chose to work within an immoral system, without them it would have not been able to function. She felt particularly scathing toward the Healthcare Professionals, they were supposed to help people for god’s sake; they probably sat in their surgeries sending patients to physiotherapists, and then they denied them benefits because they’d gone and were following their advice.
Sue looked at the two people opposite her, “So,” she said, “ask away. What would you like to know?”
“Well, I err, I don’t think there is anything really, is there Doctor?” Judge Philips said, as Sue felt a flicker of triumph, maybe she’d gotten through.
Doctor Heath, sorted through his papers, “Well, Miss Bailey, when you walk around the village, how far do you walk?”
Sue’s anger rose once more, he was determined to stick to the script.
“It varies,” she replied, her voice deadpan.
“I know, but about how far?”
“It varies, I haven’t left the house much at all for the last few weeks, as I’ve been in the midst of a flare up.”
“But before that,” he persisted, “How far would you say? Twenty metres, thirty…”
*****
The letter came through the door a week later, they had stopped giving the results of the tribunal at the end of the hearing, and now informed the ‘customer’ by post. Damn cowards, Sue thought, didn’t want to deal with the messy part, the anger and dismay their judgement caused; much easier for them this way.
The appeal is disallowed.
The decision of the Secretary of State is set aside.
The appellant is entitled to ESA with limited capacity for work.
No Schedule 2 ESA Regulations descriptors were awarded.
Regulation 29 is not satisfied.
No Schedule 3 ESA Regulation descriptors were awarded.
Regulation 35 is not satisfied.
Signed Judge Philips
Tribunal Judge
Although the letter contradicted itself, Sue got the general gist, she’d failed. It was pretty much as she’d expected, although she had thought that perhaps she’d gotten through to Judge Philips just a little bit. An image of the Judge making notes during her appeal floated into her head, and what had she said at the beginning? She’d thought she’d recognised Sue. She got up, opened the cupboard in which she kept all benefit’s correspondence and started to rummage. Unfortunately as she had no filing system what so ever it took quite a while but she finally found the papers she was looking for, her last appeal. And there it was, Judge Philips, she’d been right, she’d sat on Sue’s last appeal; the one she’d criticised in her statement. Well, no wonder she’d failed to qualify for ESA. But could that be a point of law to contest the outcome of her appeal? Not that there was any point. Even if she won and got a new appeal hearing, the outcome would be exactly the same. She sat down and immediately got straight back up again, to hell with it, she was going to be as awkward as she possibly could. First, however, she needed to apply for Jobseekers Allowance. She regretted her decision now, not to put off the appeal hearing, if that were even possible, because she couldn’t immediately reapply for ESA. It had only been five months since she’d originally been turned down for the benefit, and she couldn’t try again until after six months. So, as she couldn’t live on nothing she would have to go onto JSA. Decision made she dialled the very familiar number and listened to exactly the same music while on hold.
“Hello, this is Mark how can I help you today?”
“I’ve just received notification that my appeal for ESA has been turned down and I need to apply for JSA.”
“Okay, if I can just go through some security questions with you and then I’ll get your details up.”
Sue knew the drill, the questions were cherry picked from the same subject matter each time, either her national insurance number, or her date of birth, home telephone number, or the bank her ESA had been paid into.
“I see, your ESA claim hasn’t been closed down yet. When would you want to claim JSA from?”
“From the date my ESA ceases to be paid.”
“Okay, if you just bear with me.”
Sue could hear the sound of fingers dancing over a keyboard and wondered what on earth he was making a note of.
“Right, I can transfer the data across to your claim for JSA and then you’ll receive an appointment to attend an interview at your nearest jobcentre plus. Would that still be Taunton?”
“Yes, that’s right.” Deep breath in. “I also intend to appeal against my appeal decision, if that makes sense, on a point of law.”
Silence, Sue refused to fill it and waited.
Finally, after several seconds Mark spoke. “You can’t appeal against your appeal when you are claiming JSA.”
“I can’t…but that makes no sense. I can’t afford to not receive any benefits while the appeal goes through.”
“So, do you want me to process the JSA claim, or not?”
Sue couldn’t believe it, she was effectively being financially blackmailed not to launch an appeal. Damn, she couldn’t live without benefits and wasn’t prepared to ask for any more help from her parents. She couldn’t afford to be precious about her principles.
“Yes, you can process it. I won’t be contesting the appeal decision on a point of law.”
She felt her mood deflate, it was like an actual pulling down of her insides, dropping them into her abdomen. Where was the justice? How could they do that? At least when she’d been prepared to fight on, pointless as it would have been, it did at least feel good. Bastards had you all ways.
*****
Two weeks later and Sue was sitting in her local jobcentre plus, it was, she supposed a pleasant enough space. Of course she’d been upstairs before in the past, but this was her first foray into the downstairs world. It was a long, rectangular space, with a burnt red carpet, light walls and a variety of seating areas none of which were comfortable. The last time Sue had registered for unemployment benefit they still had little tickets, tucked into pockets, along the walls, job adverts typed upon them, some, heaven forbade, may even have been hand written. Now there were machines that looked very much like free-standing cash points, but were in fact to search for employment. If you actually found something then you could print out the details on a long piece of paper that looked like a till receipt. Sue smiled as she looked at a child, around four, printing reams of the things, while, she assumed it was his mother, stood and looked at the one beside him. When she finally registered what her offspring was doing, she grabbed his sweater and pulled him close, her face twisting into a snarl as she told him to stand there or else. Sue shook her head, it was a sight you saw everywhere, parents issuing sharp staccato orders to their children, instead of simply communicating with them. Sue imagined if it was her, what would she have done in that situation with Lottie? Probably swept her in her arms, maybe saying something like, ‘come here you tinker,’ and she would have laughed, and Lottie would have laughed.
The Little boy didn’t laugh, he looked so solemn and tired of it all already. His mum had him pinned between her legs and the machine. When she bent to pick her mobile out of her bag, he took the chance to bre
ak free. Sue was silently begging him to stay still, but he had his eye on one of his print outs that lay discarded on the floor. As he bent to pick it, mum caught up with him, lifting him by the scruff of his sweatshirt.
“I told you to stand still, the man’ll get you mind.”
The little boy looked nervously at the hapless security guard standing in the doorway, if he heard he didn’t re-act but carried on chatting to the receptionist.
“Sue Bailey please,” a woman called from the other side of the room. Sue walked past the signing on posts and stopped in front of the caller’s desk.
“Sue Bailey?”
“Yes.”
“Lovely, just take a seat.”
“Thank you.” Sue took off her coat and hooked it over the back of her chair, her bag she kept on her lap, as it saved her bending down for it later, and her walking stick she propped against the desk. As she faced the woman Sue felt her mood change, she’d been anxious before, but ten minutes perched on impractical seating had left her back and legs aching, add that to the seemingly unending tiredness she’d been experiencing lately, and she was now feeling pretty belligerent.
The woman looked up and smiled, a little nervously Sue thought. She was about her age with short auburn hair, which she wore in one of those styles that looked casually unruly but had probably taken an age to perfect that morning. She had a pleasant, smiley face and unlike some of the others in the jobcentre, who sported rather casual attire, she wore a suit.
“My name is Lauren Blackett, I’m your personal advisor and today’s meeting is to draw up a contract between ourselves as to how you will be searching for work.”
Sue made a non-descript grunt as her mind turned and she tried Lauren’s comment on for size, and then dismissed it as irrelevant. “Do you mind if I ask, how is this supposed to work when I have a sick note from my doctor saying I’m not fit for work? Even though I’ve just failed my ESA appeal.”
“Well, if you’ve been found fit for work by the appeal then you don’t need to get a sick note anymore,” Lauren replied, uncertainty in her eyes, maybe she sensed Sue’s mood.
“But my doctor says I’m not fit for work, how can I then look for work?”
“For us, all that matters is that you’ve been found fit for work by the tribunal, your doctor’s judgement isn’t relevant, so you don’t need a sick note.”
Sue leaned forward, tried to ease her back. “And if I don’t agree with the tribunal?”
“You have to be fit for work to receive this benefit Miss Bailey, and that’s been the ruling made against you.”
“Something I had intended to appeal against, on a point of law, until I was told I couldn’t do that and claim JSA. How can that be right?” Sue knew she was probably being unfair to the poor woman, but she had resolved not to make this easy for them, the ambiguous machine responsible for her plight.
Lauren frowned as she replied. “Well, it’s not right, you can appeal and claim JSA at the same time.”
Now it was Sue’s turn to be flustered. “What? But the guy said…for god’s sake, I should know better by now. You never, ever get the correct piece of information the first time you phone the jobcentre plus, you should always phone at least three times and then maybe, just maybe, if you’re lucky, you find someone who actually knows what they’re talking about.”
Lauren ignored the slur upon her fellow workers. “Well, you can definitely appeal. But now we need to fill out your jobseekers agreement.”
Sue’s mood turned once more, to frustration and resignation. “Fine,” she shrugged her shoulders as she spoke. “I can play the game as well as anyone else, let’s just do it.”
Lauren looked unsure, but returned to her script and processed Sue through another part of the machine. In the end Sue agreed to apply for at least two jobs a week, and do at least two further job searches, to travel up to thirty minutes on the bus (as if!), and start work within a week of being offered a job. It was cloud cuckoo land, she could no more go out to work, even part time, than fly, but she played the game. Sue signed on the line, as Lauren assured her all of her benefits, including her mortgage relief and council tax payments would transfer seamlessly across to her JSA.
Unfortunately that confident reassurance turned out to be the usual incompetent Jobcentre Plus reality. It would in fact take three months of arguments on the phone with the Jobcentre Plus, a crisis loans from her dad, a re-application for council tax benefit and a letter from her bank telling her she was in mortgage arrears because the Jobcentre Plus had failed to process her claim properly, before Sue would come close to sorting the matter out. The bank had been the final kick in the gut as they announced, due to her mortgage falling into arrears, she now had a bad credit rating, despite the fact she had been unaware of the development and it was wholly and completely a situation caused by the Jobcentre Plus.
As soon as she arrived home from her appointment with Lauren, Sue sat down to compose a letter stating her wish to appeal against her appeal judgement on a point of law. Her body needed to rest, her back needed to be eased and her head needed to stop pounding but she was not putting this off, anger made her focus. She was out of the one month parameter for appealing, but that was hardly her fault, bloody Jobcentre Plus.
Dear Madam/Sir
I would like the decision to disallow my appeal to be set aside. I appreciate that I am just outside of the time frame given to make such a request, but when I asked the jobcentre plus for advice regarding such action, I was told I could appeal against the decision but would not receive any benefits while my request was considered. Obviously I had no choice but to make the decision not to proceed. Whilst attending an appointment at the Jobcentre Plus I found this information to be incorrect.
Therefore I would like the decision, disallowing my appeal for Employment and Support Allowance, set aside. It was heard before Tribunal Judge Philips and Dr Heath.
Judge Philips stated, when I entered the room for the tribunal, that I seemed familiar, I didn’t make a connection. In fact Judge Philips was the judge at my previous appeal, which was also unsuccessful.
In light of this I do not believe I could have received a fair hearing, for the following reason:
In order to be successful at my appeal, I was effectively asking Judge Philips to contradict her previous ruling.
I read a statement at the beginning of my appeal in which I stated the various reasons I have for having no faith in the system. Many points were based upon the inaccuracy of my previous appeal. I demonstrated how handwritten notes taken on that occasion bore no relevance to the reasons given for denying my appeal. Those handwritten notes were taken by Judge Philips, as she was the presiding Judge at that time.
In severely criticising my previous appeal on, I was effectively criticising Judge Philips. As she stated when I entered the room that she recognised me, I feel she should have stopped the tribunal and declared her bias in my case. I would never have agreed to proceed had I realised the same judge from my earlier appeal, who I criticised at the onset of my appeal, was to be hearing my case.
I find it disgraceful that anyone should be put in the position of attending, what is in fact, a legal hearing without personal representation. Due to cuts in Welfare Rights the luxury of legal representation for people like myself, is no longer available. Ensuring that the Judge and medical representative, and those fighting their appeal, are on an unequal and unfair footing to start with.
I would like all of the handwritten notes taken by Judge Philips at my recent appeal forwarded to myself, as well as a comprehensive explanation as to why my appeal was unsuccessful.
Yours faithfully
Miss Sue Bailey
Two weeks later Sue received her response.
The decision of the tribunal is not set aside.
Rule 37 of the Tribunal Procedure (First-tier Tribunal) (social entitlement Chamber) Rules 2008 provides that a decision that disposed of proceedings can be set aside and re-made if the Tribunal fi
nds that it is in the interests of justice to do so and one or more of the specified circumstances are satisfied:
a) A document relating to the proceedings was not sent to, or was not received at an appropriate time, by a party or a party’s representative:
b) A document relating to the proceedings was not sent to the Tribunal at an appropriate time;
c) A party, or party’s representative, was not present at a hearing related to the proceedings; or
d) There has been some other procedural irregularity in the proceedings.
The Tribunal finds that the procedural grounds for setting aside of a decision are not established.
The appellant seeks a set aside on the ground that the Tribunal judge presiding over this appeal is the same judge who presided over an earlier unsuccessful appeal. It is established case law that no sustainable objection can arise merely because, in the same appeal or an earlier appeal, the judge has commented adversely upon a party, or, as in this case, disallowed an earlier appeal, unless the judge has expressed him or herself in such extreme or unbalanced terms that they cast doubt on his or her ability to adjudicate on the issues with an objective judicial mind. This is not suggested and was certainly not the case.
There is no enshrined legal right to representation and in any event the Tribunal has an enabling role to assist an appellant in the presentation of their case in circumstances where this is necessary. The Tribunal has no power to regulate the resources which fund the availability of representatives.
The appellant is obviously unhappy about the outcome of the appeal; however this does not mean the decision should be set aside.
Printed at the bottom of the letter was the name of the Judge who had decided Sue had no grounds for appeal. It was signed – Tribunal Judge, Judge Philips
Sue shook her head in disbelief, the system may adhere to the letter of the law, but she found it very difficult to believe that it encapsulated the spirit of natural justice.
An Ordinary Working Man Page 28
