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Tribunal Advice

J.Mckendrick
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Welfare Benefits Team - Phoenix & Norcas

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This has been probably been asked before - I have an EU client who was on JSA and carer’s allowance but was wrongly advised to claim income support by the JCP because of his caring responsibilities. You guessed it, he was turned for IS re the RTR test etc and has now appealed to the Tribunal re his IS decision. I know he won’t win this but I think he should have his JSA reinstated and backdated as the incorrect advise he received from the JCP can be proved by way of correspondence received from the said JCP itself. Question - Even though the Tribunal (and DWP) believe it is an IS appeal hearing, does the Tribunal have the power to make an award of another benefit ie JSA in my case. Any advice would be appreciated.

John Birks
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A tribunal can only look at the decision under appeal - you’d be better making an application for a Special Payment equal to the loss + whatever is prescribed in the circumstances by way of compensation for loss/distress/numptiness under the Financial Redress for Maladministration scheme.

https://www.gov.uk/government/publications/compensation-for-poor-service-a-guide-for-dwp-staff

Edmund Shepherd
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You could ask for a tribunal direction. It’s happened before, in the case of an IS overpayment the papers indicated a claim to ESA had been made at the start of the overpayment period and there was medical evidence to support it, so the judge refused the appeal but directed that JCP award ESA from the relevant period.

past caring
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Such a direction carries no legal weight, however, and is in no way enforceable.

What I would ask for - if the FtT is amenable - is a decsion that makes some detailed findings of fact and which states expressly that your client was misadvised by the the DWP/JC+ and should seek compensation for the same from the department. I have found that the DWP will always cough up in the face of such a decision.

And you may find the FtT more amenable to giving you what you want if you concede the appeal at the outset of the hearing.

J.Mckendrick
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Many thanks - all good stuff.

J.Mckendrick
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Dear Mr Past Caring - Would the FTT not be very happy that you are merely using them for some other remedy especially attending there when you agree with the DWP decision regards no entitlement to IS on the grounds of the RTR test!

Jon (CANY)
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This previous thread should be of interest: http://www.rightsnet.org.uk/forums/viewthread/5192/

Would the FTT not be very happy that you are merely using them for some other remedy especially attending there when you agree with the DWP decision regards no entitlement to IS on the grounds of the RTR test!

I have done this (the case involved different facts/benefits). We made an appeal in good faith, but by the time submissions were made I realised the tribunal almost certainly had no jurisdiction. At the hearing I was quite open about doubting the merits of our appeal, but asked the judge to set out the reasons why it was not in his power to grant what we asked, despite what I maintained was the overall unfairness of the situation. In doing so, he very kindly made some findings of fact which we then used in support of a complaint to DWP, which eventually got the client a large amount of compensation. I don’t know if the complaint would have worked, had we not exhausted other remedies first.

past caring
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J.Mckendrick - 20 March 2015 05:51 PM

Dear Mr Past Caring - Would the FTT not be very happy that you are merely using them for some other remedy especially attending there when you agree with the DWP decision regards no entitlement to IS on the grounds of the RTR test!

See also the reply above which covers much of what I’d have said. But in addition;

1. The SoS hasn’t applied for the appeal to be struck out.

2. If there’s been any internal scrutiny at HMC&TS; no judge there suggested that the appeal is without merit and should be struck out.

3. I cannot see any tribunal being too upset were you to say that the appeal was made as a way of remedying what was an obvious injustice but that subsequently you have realised that the appeal cannot succeed and so are asking for a decision that confirms the Ftt does not have jurisdiction but that it finds as fact your client was wrongly advised.

4. More importantly, as you say your client was claiming JSA and was then wrongly advised to claim IS, I wonder whether CIS/4144/2007 might not have some bearing on the appeal. I should have referred to this in the first instance - sorry. This was a case in which a lone-parent EEA JSA claimant was wrongly advised to claim IS instead;

28. If the claimant was not receiving a jobseeker’s allowance and was advised to claim income support, there may be a right to some compensation for bad advice. That is outside the tribunal’s jurisdiction and it can only draw it to the claimant’s attention. The tribunal has no power to treat the claim for income support as a claim for a jobseeker’s allowance. In some cases, it is permissible to treat a claim for one benefit as a claim for another under regulation 9(1) of, and Schedule 1 to, the Social Security (Claims and Payments) Regulations 1987. However, claims for income support and jobseeker’s allowance are not within those provisions.

29. If the claimant was receiving a jobseeker’s allowance and was advised to claim income support instead, the claimant has the right to appeal against two decisions: (i) the decision terminating jobseeker’s allowance; and (ii) the decision refusing income support. Given the time taken to decide the income support claim, it is likely that an appeal against decision (ii) will be made outside the one month allowed to appeal against decision (i) by regulation 31 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. However, it is possible to extend time under regulation 32. The tribunal should always consider whether: (a) the terms of the appeal against (ii) are capable of covering (i); and (b) whether time should be extended under regulation 32. These are issues for consideration at the rehearing.

30. In R(JSA) 2/04, Mr Commissioner Rowland dealt with position when an award for jobseeker’s allowance was terminated and the claimant made a second claim. Claimants often seek to have their award on the second claim backdated. Mr Rowland decided that the claimant had two rights of appeal: one against the decision terminating the previous award and the other against the decision on the second claim. I asked the Secretary of State if that approach could be applied to this case. The representative has argued that it cannot and sought to distinguish this case from Mr Rowland’s on the ground that the evidence supplied on the second claim for jobseeker’s allowance might provide grounds for revising the termination of the previous award.

31. I accept that the representative has identified a difference, but I do not accept that it is a distinction, because it overlooks the underlying basis for Mr Rowland’s decision. Although he did not mention it, he was applying an approach to social security adjudication that has been established for over half a century. The Commissioners have never insisted on strict compliance with legal form and have classified claims and applications by reference to their substance rather than their form. In R(I) 15/53, the Commissioner said (paragraph 4): ‘A demand for strict compliance with legal forms would operate harshly in many cases if applied to claimants’. And in R(I) 50/56, the Commissioner treated a claim as an application for review, saying:
‘18. … it must be remembered that claimants may well fail to appreciate the appropriate legal procedures by which their rights ought to be protected and it is essential that the determining authorities should not defeat a meritorious claim by a legal technicality.’
This approach is not limited to social security. It has been applied to employment, Rent Act and planning cases. See the decision of the Employment Appeal Tribunal in Burns International Security Services (UK) Ltd v Butt [1983] ICR 547 and the authorities cited at pages 550 to 551.

32. The success of an appeal against the decision terminating jobseeker’s allowance will depend on the grounds on which it was made. If it was based on the claimant’s withdrawal from her jobseeker’s allowance award, there will be an issue whether she gave informed consent: CJSA/3979/1999 and CH/1815/2005. The withdrawal may have been expressed. More likely, it will be evidenced by her failure to continue signing on. There may also be an argument that the misleading advice would be an abuse of power on which the Secretary of State could not rely in accordance with CIS/6249/1999.

Would it be possible to argue that the appeal against the IS decision should be treated as an appeal against the JSA termination? Would an appeal still be within the absolute time limit if not?

 

past caring
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(continued - the word limit cut me off from including this in the last post).

There is an internal aide memoire on right to reside cases for FtTs which covers the approach tribunals should take in cases of wrong advice by the DWP. It confirms that for claimants who have never claimed JSA and who were wrongly advised to claim IS, the only remedy would be to claim compensation (i.e. I think tribunals are advised to inform appellants of this). But for those who had previously claimed JSA it specifically references the four paragraphs I’ve quoted from CIS/4144/2007 as the correct approach for tribunals to take.

Cordelia
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I had a similar case in 2013.  A pregnant EU Jobseeker was advised to close her JSA claim and claim Income Support.  Income Support was then refused.

We assisted her to appeal against the decision to close her JSA claim.  She had had no objection to looking for work but had been misadvised by the DWP.

Unfortunately the first tier Tribunal couldn’t accept that the Jobcentre could or would give wrong advice, so our appeal was unsuccessful.

We have been granted leave to appeal and it looks promising at this stage. 

I would suggest asking for a late mandatory reconsideration / appeal against the decision to close the JSA claim. 

Good luck.

benefitsadviser
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The first tier did not believe that the Jobcentre gives wrong advice??

Words fail me…....

If i had a quid…