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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Reg 35(2)(b) and NS v SSWP (ESA) 2014 UKUT 0149 (AAC) - counterpoint?

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Richard Park
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I am assisting a client with an appeal to the Upper Tribunal on a Reg 35(2)(b) issue. She’s been to one face-to-face WFI and now participates in them by telephone. JC+ have been unable to identify any WRA and this is clear on her Action Plan. The DWP’s position however is that the fact that no WRA have been recommended does not automatically mean that the claimant should be in the SG - they have cited NS v SSWP (ESA) 2014 UKUT 0149 (AAC) in which Judge Jacobs states that the test for Reg 35 is whether the activity would give rise to any risk, not whether the claimant is likely to derive any benefit. In ML v SSWP 2013 UKUT 0174 (AAC) the judge states, ‘the support group is not for those who will never be capable of work. It is for a narrower category’ - which begs the question anyway: what provision is there for those that will never be able to work, if not the SG? My main query though is does any more recent case law exist that offers a counterpoint to this view?

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BC Welfare Rights
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Not aware of any direct counterpoint; this decision does at least contradict the nonsensical Kafkaesque judgement given by Judge Mark in UKUT 0635 (AAC).

If you haven’t already read it I suggest you look at Mark Perlic’s summary of Reg 29/Reg 35 available in the notes from Stockton meeting of NAWRA’s website which has extensive quotations from years of judgements in this area.

Dan_Manville
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edit…

The test is what risk would arise; if you can’t identify any risk it’s broke biscuits. Bear in mind that S13(7) WRA 2007 means that the activity considered by reg 35(2) is somethng more than telephone interviews or WFIs and borrowing the examples in MN v SSWP [2013] UKUT 262 (AAC) [2014] AACR 6 it can stretch as far as work experience.

In NS Judge Jacobs posed that question… what risk would arise and that’s the key question; identify the risk and you’re over the hill.

[ Edited: 18 Jul 2014 at 10:14 am by Dan_Manville ]
Dan_Manville
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Richard Park - 17 July 2014 02:15 PM

The DWP’s position however is that the fact that no WRA have been recommended does not automatically mean that the claimant should be in the SG

It doesn’t.

It means that JCP haven’t identified any WRA available in the area that might suit your client. It isn’t a consideration of the risks that might arise if they undertook WRA, just what’s available. (often nothing if they’re not liable to referral to Work Programme)

They can’t refer in to the Work Programme while the appeal’s ongoing; that’s no assessment of any risk, it’s just policy.

What I’m trying to get at is that the Action Plan is not evidence of risk and it’s the risk that’s being assessed by reg 35, not the availability, or otherwise, of WRA to people who haven’t been referred to the WP.

Also, unless your client had a period in the WRAG before the decision under appeal you might find that the Tribunal is barred by S12(8)(b) SSA ‘98 from taking the Action Plan into account.

jimmckenny
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Have you seen article in WRB by Martin Williams?  Can’t remember exact edition, but I think it was sometime in 2013.  Also the workshop he gave at NAWRA in June 2013 on Reg. 29/35.

Paul_Treloar_CPAG
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There’s this caselaw roundup by Simon Osborne from April 2014, which includes a section on LCWRA Recent WCA caselaw

Then there’s Martin Williams’ article which looks at both exceptional circumstances for LCW and LCWRA which was from April 2013 Making an exception

I can’t find a way to access Martin’s NAWRA presentation, as the content is members-only and password protected.

[ Edited: 18 Jul 2014 at 03:54 pm by Paul_Treloar_CPAG ]
Daphne
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if martin doesn’t mind I can put it on - can you ask him Paul

BC Welfare Rights
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Making an exception by Martin Williams is googleable, available here http://www.cpag.org.uk/content/making-exception

Edit
Sorry, repeating Paul’s link above

[ Edited: 18 Jul 2014 at 06:12 pm by BC Welfare Rights ]
Paul_Treloar_CPAG
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Daphne - 18 July 2014 03:40 PM

if martin doesn’t mind I can put it on - can you ask him Paul

I’ll check with him next week and let you know, thanks Daphne.

BSM
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I agree with DManville, above, as far as I can tell. There’s certainly other case law which will help you at the margins, but your solution is most likely to be derived from NS, whatever the DWP is trying to make of it. In the main they’re not lawyers, of course, and the assertions of law they make are not necessarily, uh, completely reliable. Others might put it more strongly. Ha!

Have a careful look at paras 25-34 of the decision, and perhaps especially paras 27-28 and 31. Judge Jacobs properly points out that his decision may not bring everyone within its ambit, but such cases will be pretty rare in my opinion. Certainly I’ve never had one.

Good luck with it.

Paul_Treloar_CPAG
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Daphne - 18 July 2014 03:40 PM

if martin doesn’t mind I can put it on - can you ask him Paul

Yes, Martin is happy for you to post it, but please make it clear that the presentation reflects case law as it stood then, and obviously therefore doesn’t take account of any subsequent changes.

Daphne
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Sorry for delay - been away - here they are - but as Martin says they are from last June so there has been a lot of further caselaw since then -

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Dan_Manville
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List of up to date (at April 14) reg 35 caselaw (sorry I didn’t think of this earlier)

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Sev
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Many thanks to all who contributed assistance here. I appreciate it. Sorry for late reply. The Action Plan states ‘does not feel could manage any time (sic) of employment and health will get worse’ - is that not some sort of assessment of risk?

During the hearing the appellant was asked to identify any risk of her engaging in WRA and is clearly heard to say ‘me ending up in hospital’; when pressed further on the matter the judge - whilst not being able to hide their incredulity - then directs her response by focussing her attention on WFI and telephone calls and reiterates the question; the appellant’s response is unclear at this point, there’s some unintelligible verbal cafuffle, laughter from all parties and embarrassed-sounding apologies from the judge for having to ask such a question at which point her husband is heard to say ‘no’ which I interpret as him simply accepting that it is the tribunal’s duty to make such enquiries; at any rate the appellant does not answer - all this is recorded in the SOR as the appellant being unable to identify any risk due to WRA.

I would be tempted to argue that risk has been identified in relation to WRA. Going to follow up all the info links presented in this thread, thanks.

In case you’re wondering, I had to borrow Richard Park’s login details until I was able to register for access to the discussions.

[ Edited: 8 Aug 2014 at 10:55 am by Sev ]
Sev
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As an aside. . .
Marc Perlic comments - ‘clear WFI not work-related activity – WRA follows the WFI’.
Seems common sense and has always been my feeling as well. They are treated separately in the Regs. However, I keep encountering judges who maintain they are the same thing. I have used MT v SSWP (ESA) [2013] UKUT 0545 (AAC) in the past but wonder if there’s anything more recent or persuasive?

Peter Turville
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from UtT website - cases pending before a panel of three judges:

CE/3453/2013
Regulation 35 – is it compatible for the claimant to satisfy descriptor 16(c) in Schedule 2 but not regulation 35 and should the Secretary of State for Work and Pensions have made the tribunal aware of the full nature of the Work Programme to which the claimant would be subject (it was more prolonged and involved more sustained involvement than the tribunal believed)

Not our case so don’t know if it directly addresses the issue.