waiting days increase

looking for some opinions here folks.

we responded to the consultation on the suggested increase in waiting days for both esa and jsa.  as a charity for people with a learning disability the majority of our client group are entitled to higher rates of payments of benefit via their entitlement to DLA (and if we ever get any decisions back) PIP.

our main argument in the response was that this is deeply unfair (I disagree with it for a host of other reasons as well) as people with a learning disability and disabled people generally will lose out more financially than those who are non disabled.

as the changes have been passed, I am now wondering if there is merit in us launching an appeal on this and going down a discrimination route?

I have never went with a challenge like that before but my understanding is that I would need to a, show that the discrimination could not be justified in relation to the overall intent of the policy and b, suggest a practical amendment to the regs?

any thoughts appreciated!

I don’t like it either but who is the group it discriminates against since it applies to all claimants?

if a client with DLA claims jsa then they would normally get their personal allowance plus the disability premium, sdp or potentially enhanced meaning that their overall loss from this change is greater than a non disabled claimant.

there might not be an argument here as I have never ran with anything like this which is why I want some opinions to see if it is worthwhile.

I really hope it is.

But, playing devil’s advocate, you could argue that it doesn’t discriminate against disabled people per se as not all disabled people get DLA.  You could also argue that it disadvantages non-disabled people more as they might not have any other income so feel the affects more acutely during the waiting period.

Steve, I think Art 3 & 14 [HRA] would have to be used. I do not think outright discrimination would be sufficient, IMHO.

You can’t bring a stand alone article 14 challenge.  You have to show that another article is engaged and I don’t think that article 3 would be engaged at all.  My view on article 3 challenges is here, at post 6.

http://www.rightsnet.org.uk/forums/viewthread/6025/

nevip - 05 September 2014 09:45 AM

But, playing devil’s advocate, you could argue that it doesn’t discriminate against disabled people per se as not all disabled people get DLA.  You could also argue that it disadvantages non-disabled people more as they might not have any other income so feel the affects more acutely during the waiting period.

would either of those be particularly strong arguments in your opinion?

I don’t know Steven as I’ve not yet thought them through,  just trying to provide food for thought.

Paul I’d have to disagree, Botta and Zehlanova make it clear that Art 3 would be appropriate. Also the more vulnerable the victim is the more likely it is that the threshold of minimum severity will be met. [See: Price v. the United Kingdom [1988] 55 DR 224.]

The assessment of the minimum threshold is relative and depends on all the circumstances of the case including the duration of treatment, the physical or mental effects and the sex, age and state of health of the victim.[see Ireland v. the United Kingdom [1978] 2 EHRR 25, para 162; see also Selmouni v. France [1988] EHRLR 510, para 160]
A client’s inability to complain coherently, or at all, about how he or she is being affected by any particular treatment, is also taken into account. [see Herczegfalvy v. Austria [1992] 15 EHRR 437, para 82; Aerts v. Belgium [1998] 29 EHRR 50, para 66]

And Art 3 provides a positive obligation to require public authorities to take steps to prevent ill-treatment. This requires the state to have laws in place to adequately protect vulnerable groups from ill-treatment and for public officials to act to protect vulnerable people from harm inflicted on them by others or by public authorities.

Usually if Art 3 level is not reached it tends to overlap with Art 8, so that too would need looking at.

Brian do you mean article 3 of the ECHR rather than the HRA?

Yes apologies