Client had ESA lcwra via reg 35. He lost it after a new medical and in due course went to appeal. The rep did not mention Reg 35 and instead relied on a schedule 3 descriptor. The tribunal found that that descriptor did not apply and did not consider reg 35 because an experienced rep had not raised it.
I think the tribunal had adequate reason not to apply the descriptor but the reg 35 continued to apply. I am in the process of requesting permission to appeal and have argued that as reg 35 was the decision appealed against, the tribunal erred in law by not considering it – burden of proof and all that. My worry is that the only case law I can find says that the tribunal is entitled to rely on the rep. That case had I think a different burden of proof so can be distinguished – I hope.
Does anyone know of any more helpful case law here – hoping for something more to the point about it’s inquisitorial duty.
(Original rep from another organisation and I suspect new to appeals, no matter what the tribunal said. It was a pretty basic error but who among us has not ….?)