An argument for ESA CONVERSION APPEALS

A neat argument Martin but tribunals will need to be perusuaded, I suspect, about the level of detail required by (c).

I think you’re almost certainly right on this Martin.  After reading your submission, I thought the SSWP might attempt to argue that any defects in the letter are capable of being rectified in the later telephone call made to the customer, ie “notice” could be written or verbal or both.  However, I see that Reg 2(2) of SI 2010/1907 provides:

“(2) A requirement under these Regulations to give a notice (or to notify) is a requirement to give notice in writing;……”

That would appear to rule out such an argument.

Also I note that the heading of Reg 4 is “The notice commencing the conversion phase” suggesting a flawed notice in the manner you describe would prevent the conversion phase commencing at all, supporting further your argument that the conversion decision is of no effect.

Thanks and well done.

Tony- if the conversion decision is not validly made then the claimant’s IS/IB should not have stopped at all.

A conversion decision does one of two things:

1. End IS or IB and awards ESA (including component). See Reg 14.

2. Ends IS or IB and does not award ESA as claimant does not qualify for conversion. This is brought about by Reg 15(2).

If no conversion decision is made then no IS or IB stop occurs. As far as I can see there is no separate decision to end IS or IB etc. - that is simply a follow on consequence of the conversion decision itself. If people are seeing SEPARATE IS or IB stop decisions in these cases then I guess you appeal them as well but my reading is that it is all one and the same decision.

If that is right then the DWP have to pay back to the claimant who has appealed and succeeded the difference between the IS or IB they should have been getting and the ESA (assessment rate) they were getting pending their appeal against the conversion decision.

You are quite right to say the DWP can then properly notify them (eg send them a copy of the schedules with an explanation so at least the claimant knows how LCW is assessed) and make a new conversion decision. However that new decision will only take effect from two weeks after the claimant is notified of the outcome. Client can then appeal again. Effectively client has benefited even if loses appeal in that:

1. Has not had to sign on for longer period of time.

2. Has had more IS / IB than they would have received ESA.

Martin

Maybe the strating point is to lay out what exactly you think the ‘perfect’ notification would include?

My colleague suggests a full list of the descriptors, another the full regulations.

In either case I would say having considered the notification it appears better than most letters of the DWP. It refers to the assessment by ESA50 and by examination, perhaps it would be better to say you need 15points etc but then again maybe not.

IB50’s never carried the MH descriptors with the justification they are in the public domain. On that basis the claimant is on notice of the assessment by form and examination and information on each is in the public domain and more public than ever with the internet/information super highway.

I’m rather torn here.  I love the kind of arguments that martin has marshalled and my instinct screams use it where, of course, clients agree.  However, I fear the problem will be, as Tony says, getting the money.  I think the DWP will ‘hit back’ and withhold payment and go for the statement of reasons with a view to appealing (withholding any kind of payment), or, just refuse to put the IS/ICB back in payment without a protracted fight.

The only way out, in my view, is to also, as Martin originally said, to pursue the appeal against the failed WCA at the same time and make sure the tribunal gives a decision on that so that the client can get some money if he wins.  The problem with that is if the tribunal rules the conversion decision unlawful and then decides that it has no jurisdiction to decide the WCA failure as it was unlawfully applied.  The client is then stuck without money if the Department then goes for the statement or simply refuses to put IS/ICB back in payment.  It could be a very risky strategy the way the Department is operating at the moment.

Ok….

Tony-

Sorry I knew you weren’t having a go at the idea of a client benefitting - sorry if my reply reads like I was. I was just trying to clarify what I thought the benefit was.

In terms of successful conversion decisions- I agree that I doubt such persons will be pursuing appeals. If the argument is right then the conversions in those cases are unlawful as well. I can imagine a theoretical case where a claimant did want to appeal against successful conversion (typically realising they should do wo when their transitional award takes a dip due to some subsequent change of circumstances and is then not put back up when the change changes again etc.

John-

I think the notice is required to explain the conditions for qualifying for conversion. It is not enough to say that this information is in the public domain.

Nevip (and Tony)-

I agree there are potential problems with enforcement of a tribunal decision which is to the effect that the conversion decision is of no force.

If there is no request for statement from DWP and subsequent appeal etc. then the remedy would be simply to sue in the County Court for payment of benefit (IS or IB) lawfully due.

If there is a request for a statement etc then I guess the SSWP can suspend.

I appreciate that would be annoying in a case where had the tribunal dealt with the LCW issue then there would have been an award and I suppose it may mean that in exceptionally strong cases on the LCW point one would not want to raise the additional technical argument.

A claimant could of course try for JSA pending the DWP further appeal…

Martin Williams - 08 September 2011 02:41 PM

John-

I think the notice is required to explain the conditions for qualifying for conversion. It is not enough to say that this information is in the public domain.

 

With respect, the Judges opinion may differ.

Again I’d have to say what information do you think should be in the notice?

And don’t say ‘...the conditions for qualifying for conversion’ otherwise we’ll be going aroundaround in circles on this.

I’m not averse to the argument but it needs beefing up to be persuasive

Hi John,

I know it may take some persuading.

I also agree we may well end up going around in circles. However, in the end it is for the Secretary of State to prove to the tribunal that the notice he gave was effective.

The claimant can simply ask “where does the letter that I was sent explain to me the conditions that I must meet in order to qualify for my award to be converted to an award of ESA?”.

The letter does talk about an assessment of how my ability to work is affected by a health conditions. However, it does not have any indication of what result it is looking for in that assessment in order to allow my award to be converted.

In terms of how much detail the letter should contain about the conditions for conversion then I would say that one could take a minimum approach: the letter must state that the claimant will qualify for ESA if they are assessed as having a limited capability for work. It doesn’t even reach that minimum standard. It is arguable that it should in fact explain a bit more than this- eg that a person is regarded as having LCW if there capacity is so limited (as defined by regs) that it is not reasonable to expect them to work.

There is no indication in the letter at all that it is only if the claimant’s health is assessed as limiting capability for work in a sufficiently serious way that they qualify. A claimant has no way of knowing from the letter that the more lacking they are in terms of capability to work the more likely they are to qualify for conversion. That demonstrates its inadequacy.

In the end the argument is not so different from the cases regarding inadequate notices of suspension of benefit not giving the LA a power to terminate etc.

The letter doesn’t even satisfy Reg 4(3)(b) let alone (c).  It doesn’t expressly state, as it must, that the IB or IS will end if the customer doesn’t qualify for ESA.  It just effectively says we’ll discuss your options with you at the time. 

I think Martin’s argument has the potential to help many people and am slightly surprised that advisers aern’t more enthusiatically receiving it.  Whilst Tony/Nevip/John clearly only have the clients’ best interests in mind, i think it’s a slippery slope when we start allowing DWP incompetence/ignorance of the law to influence our advice (and of course I’m not suggesting that Tony et al are doing that). 

So the DWP don’t get the notification letter right due to their incompetence.  But we don’t do anything.  Why? Because if we do the client will be no better off and might even be worse off.  Why? Because the DWP will not re-instate IS/IB due to their incompetence.  Hope this slope’s not steep as I can see us advisers falling off.

It’s a fine balance between hope and despair, as a great writer once said - probably not thinking at the time about whether or not he’d appear foolish at an appeal tribunal.

Perhaps it will ‘add value to the claimant experience’  - [Implementation of recommendations of the Harrington Review’ Ron Platt, DWP Welfare Change Delivery, 8.9.11]

Tom -

- thanks for noting the fact the letter doesn’t deal with head (b) either- I had completely missed that.

- I’m sure no one is saying simply “don’t run the argument at all” - I think it is worth raising the potential difficulties that may occur.

My own view though is that most clients who had the situation explained to them (unless in view of advisor their LCW case was very robust indeed) would opt for running the argument.

I am a bit late into this thread but I think there is some merit in the arguments. .4(c) says that a claimant should be informed of the requirements that must be met in order to qualify for ESA. The letter doesn’t say anything about the requirements as such, it just says that there are some to be met without saying what they are. The other thing it doesn’t say is that the requirements are substantially different from those required for IB.

While I doubt that it is arguable that all the descriptors should be set out in the notice I think it is arguable that the claimant should have been informed that different descriptors would be used and giving the claimant some explicit guidance as to where full copy of those descriptors might be found, either by giving the full legal title of Sch 2 &3 and probably by a link to a website as well.

Please correct me if am wrong.

If the Wefare Reform Bill becomes law without any amendments then payments of Contributory ESA for people in the WRAG will be limited to 12 months. Although Jobcentre Plus are going to be notifying current ESA claimants of this, people on IB will remain unaware of this change which will impact on them 12 months after their conversion unless they can get into the support group. So If Tribunals except Martin’s argument this could delay any loss of income for this group of people. For that reason alone I think it is worth running this argument at appeals. 

I also understood that whilst the appeals process is on-going that basic rate ESA should still be paid, and that this remains the case where the Department has asked for a statement of reasons.

I have now written about this issue in the Welfare Rights Bulletin and updated the submission a bit. Please see the cpag website here for copy of the article and the more developed submission:

http://www.cpag.org.uk/cro/wrb/wrb224/ESA.htm

Thanks to all the contributors to this thread which helped with drafting the article.