Rightsnet discussion forum

An argument for ESA CONVERSION APPEALS

2011-09-07T16:21:35Z

I note that people now seem to be getting dates for appeals against ESA conversion decisions (eg for people who have not been held to be entitled to have their awards converted).

I am posting this to alert people to a potential argument in such cases.

Please note that advisors using this argument must still prepare to argue the appeal on the basis that if it is rejected then the claimant scores 15 points etc. and so does have limited capability for work. It would be very upsetting to run this argument only to have it rejected and then be in the position of not having sought medical evidence etc. that could have won the appeal with a more conventional approach!

Also, please note that the submission I have prepared is relatively “fact light” - you may wish to provide a summary of other points including:

1. Exact date claimant was sent the notice they were entering conversion phase.

2. Fuller discussion of what the notice they received contained.

3. Explanation of how not having a notice that explained the LCW test meant they did not bring certain matters to attention of DWP etc etc.

Anyway, the argument basically works like this:

1. Only people who have been notified in accordance with the rules can have a conversion decision made on their existing award of IB or IS.

2. For a notice to be valid it must be in the form specified in the rules.

3. That includes the principle that it must contain details of how LCW is assessed and that LCW is the test that will be used to determine entitlement to ESA.

I attach a draft submission and a sample of what the DWP obviously think is a valid conversion notice.

If the argument is right then effectively the SSWP has not made a single valid conversion decision since he started the migration process.

R2R again

2013-05-21T14:55:38Z

Hello

I have today met with a Dutch National who can to the UK in August 1997. He worked in the UK between 1998 and July 2001 before claiming Incapacity Benefit which he was in receipt of for a long period from July 01 to June 2012. He then had a brief period on ESA (income related) from June 2012 - January 2013 before he went into prison for 3 months. He tried to claim ESA again since he came out of prison however a decision was made last week that he does not have a R2R.

When looking at grounds for an appeal I wondered whether the client would have a permanent right to reside as someone who has legally resided here for more than 5 years, under Art 16 2004/38 directive. If periods prior to 2006 are considered then I wondered if he could be considered legally here for the period he was working and then if he has retained worker status by being temporarily unable to work for the period that he was on Incapacity Benefit?

The client has no family members in the UK and is not married or seperated from a UK national.

My concern is that he has been on sickness related benefits since 2001 therefore this may not be considered as temporarily unable to work.

If they do not consider he has a permanent right to reside I am assuming he would not be able to establish a right to reside any other way as he would no longer retain worker status due to his period in prison?

In the meantime I have advised him to claim JSA.

Any advice on whether I am thinking along the right lines would be gratefully received.

ESA contributions : 365 day rule?

2013-05-21T10:32:13Z

I have a client who was in WRAG of ESA for 12 months pending appeal to be placed in the Support group of ESA. She won and was placed in SG in April 2012, apparently for 12 months although she was not informed of the length of the award.

She has just received a letter stating they cannot pay her ESA from April 2013 under 365 day rule.
I called JC+ who told me she had been put back in the WRAG in April 2013. No medical. No ESA50. Nothing, just an arbitrary decision. She also wasnt informed of this change in writing or verbally.

Can someone please clarify (sorry if this has been done before) as i was under the impression that the previous time in WRAG did not count toward the 365 day thing once support group applied.

I have obviously appealed, but i thought she would get another year.

Any advice is appreciated.

ESA eductional materials

2013-05-20T15:01:11Z

EMPLOYMENT AND SUPPORT ALLOWANCE EDUCATIONAL MATERIAL

Here is a link to some educational materials that I have created about sickness benefits (employment and support allowance. You can view the material at http://www.authorstream.com/Presentation/hbhelp-1821661-it-makes-you-sick/. You can see on the right of the page that you can download this presentation as a powerpoint presentation or as a video.

You are welcome to download this material and use it for any non-profit purpose to promote information about benefits provided that you give me a credit.

The material is also available on YouTube at http://youtu.be/ua0cJ5NXIa0

Please do forward this email to anyone who might be interested in the material.

Best wishes

Chris Smith, HB Help
email, chris dot smith at hbhelp dot co dot uk
web, http://www.hbhelp.co.uk
phone, 01273 474070
Post PO Box 2660, Lewes, BN7 2RW

Immigration question

2013-05-17T15:48:31Z

Client has been refused ESA (IR) on the grounds that he does not have R2R.

He is an EU national of about 25 years of age and came to the UK as a child of nine. Other than his most recent employment his employment history is far from clear and not able to be confirmed with documentation.

I think he may have a permanent R2R under Article 16 of Directive 2004/38 but I am wondering whether there is any definition of what ‘legally resided’ in the host state (Para1 of the Article) means.

I understand that it has been suggested that the client does not meet this condition as there is no proof that he was working in the UK for at least 5 years but as he came here when he was 9 he has already passed the five years residence long before he was even old enough to leave school!

Am I barking up the wrong tree with this?

As usual any thoughts gratefully recieved

CE/366/13 - CE/705/13

2013-05-17T12:50:25Z

Request from DWP for posponement of Tribunal pending outcome of UT decision in CE/366/13 and CE/705/13.
Anyone know the issues involved in these cases?

Last Nights News at Ten

2013-05-17T11:40:02Z

Did anyone else see the former ATOS doctor on News At Ten last night. he didn’t really say anything that hasn’t been known or suspected for some time but I thought it was significant that there is now enough concern about ATOS for it to be an item on the national news.

The Worst filled in ESA 50 ever?

2013-05-11T21:37:29Z

See if this link works.

http://www.flickr.com//photos/95733113@N08/show/with/8728839901/

Person has High Care & High Mobility of DLA and Incapacity and Income Support, about to transfer to ESA or maybe not?

She mobilises when needed using crutches and has the use of a disabled scooter most of the time outdoors.

Employment & Support Allowance - Payment of Work Related Activity Component

2012-03-16T14:18:01Z

I have just won at the First Tier Tribunal in Norwich on the 15th March 2012 with regards a decision about ESA that may have consequences on a national level. I argued that applicants who have not had an ATOS medical assessment within the 13 week assessment period are entitled to the work related activity component (“WRAC”) from the end of week 13 up until a Decision Maker finally finds the applicant fit for work (if this being the case) as a result of finally attending an ATOS medical. The conditions for payment of the WRAC are in Section 4(5) of the Welfare Reform Act 2007. Firstly my client had not been deemed to have limited capability for work related activity under Reg 30 ESA Regs as he merely supplied a GP’s sick note in order to claim ESA.The assessment phase is described in Reg 4(1)&(2) of the ESA Regs. The DWP argued the assessment phase continues indefinately (past 13 weeks) until an ATOS medical is carried out and a decision is made. I argued Reg 4(1) needed to be followed (13 weeks only) as reg. 4(2) was not engaged as my client had not attended an ATOS medical within the 13 weeks and was deemed to have limited capability for work under Reg 30 ESA, therefore 4(2)(a)&(b) were not engaged! The Tribunal found in my favour and instructed the DWP to make the WRAC payment from week 13 onwards even though my client had not attended an ATOS medical. Quite simply the DWP cannot keep clients waiting month after month for an ATOS medical and therefore be financialy penalized through no fault of their own. Obviously we await the posibility that the Sec of State will wish to appeal this decision.

J.Mckendrick

Hmmmmmmm ...

2013-05-16T13:57:42Z

... Bit of a long one-ish but here goes !

Have a cl from Portugal who came to uk 1993 and returned to Portugal in February 2010. He returned to uk January 2012 and claimed ESA which was refused because JCP informed cl he did not have a right to reside.

Between 1993 and 2010 cl stated that he was employed and self-employed for the majority of the time but is unable to evidence this for a continuous period of 5 or more years to demonstrate that he has gained a permanent right of residence.

We helped cl with an appeal against this decision and advised cl to claim JSA.

In November 2012 he became ill and was advised by jcp to reclaim ESA (I know !?) which i thought would be refused on the above basis but ... on 9th November he was awarded IBESA !?!?

All good I hear you think but now JCP have stated that the Decision Maker who awarded cl ESA on 9th November made a mistake because cl National Insurance record from HMRC does not evidence that cl was continuously employed for 5 years or more and they have revised this decision. I have examined the resided lawfully in the UK test and employment or jobseeking are cl only arguments.

Cl now has a date for tribunal on 30th May and I’ll be honest, I’m bamboozled by this one so if anybody has got any ideas on this, as ever, they would be greatly appreciated