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

New three - judge panel decision looking at Reg 35 and evidence of WRA

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Welfare Rights Adviser
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My case has been listed with directions that ‘it is neither practicable nor in the interests of justice to decide which of those courses of action (stay or anti test case rules) is correct until a tribunal has investigated the merits of this appeal in detail’.

Can you still keep us updated Dan

Cheers

Dan_Manville
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Welfare Rights Adviser - 19 November 2014 05:30 PM

My case has been listed with directions that ‘it is neither practicable nor in the interests of justice to decide which of those courses of action (stay or anti test case rules) is correct until a tribunal has investigated the merits of this appeal in detail’.

Can you still keep us updated Dan

Cheers

I suspect your gaffer has been speaking to my gaffer as I have seen exactly that phrase this very morning…

It would appear that the Tribunals Judiciary are very cynical about this attempt to stay pretty much every Support Group appeal; there are a lot of stay applications being refused!

Be assured I will keep this thread updated!

 

1964
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I’ve had two more bundles in the past couple of days containing the same stock cut & paste stay request. Neither of the appeals concerns Reg 35 (one of them doesn’t even concern the SG). I think they’re including it in all ESA responses- either by accident, incompetence or design (choose which).

Tom H
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Hi 1964, I know you’ve emailed it to Dan but any chance of you typing up the standard paragraph concerned and posting it here?

Re earlier posts, I don’t think the anti-test case rule applies - The DM in IM found that IM did not have LCW at all so never got round to considering the LCWRA point determined by the 3 Judges.

As far as section 26 SSA 98 is concerned, is SSWP asking for the FtT to refer these appeals back to it under para (2)(a) or for the FtT to act under para (2)(b)? 

If the latter, there seems nothing stopping the FtT hearing the appeal and if it is able to put the appellant in the SG independently of Reg 35 then to do so, ie the most unfavourable outcome of IM would not prevent any of the Sch 3 descriptors applying.  In the event that Sch 3 is n/a, the FtT would appear free to decide that, despite not having the info re work-related activity that the UT in IM thinks it should have before it, the appellant still satisfies Reg 35(2), eg based upon the evidential approach tribunals used prior to IM.  Only if, having not had sight of the type of evidence envisaged by IM, the FtT felt that the appellant did not satisfy 35(2), would the FtT have to consider what action was at that point “in the interests of the Appellant”.  And there seems two possible actions it could take: (i) stay the proceedings in accordance with section 26(4)(a) or (ii) Put the appellant in the Wrag (I’ve assumed the fact the tribunal was considering the LCWRA question at all meant that the appellant would at least be found to have LCW, otherwise none of the above applies).  In other words, I don’t think the FtT, once choosing to proceed under 26(4)(b), is bound to make a decision under that provision and, instead, can revert to para (4)(a).

But perhaps it will all be academic.  I’m starting to think that the DWP might choose to accept IM and instead produce standard paragraphs in its submissions which attempt to comply with it.  A debate may be going on within DWP with one school perhaps even arguing that IM could be a blessing in disguise.

[ Edited: 20 Nov 2014 at 07:14 pm by Tom H ]
1964
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Here you go Tom:

‘A notice instructing First tier Tribunals to stay apeals involving application of regulation 35(2) of the Employment & Support Allowance Regulations 2008 pending DWP applying for permission to appeal to the Court of Appeal in the case of IM v SSWP is attached to this response. I am notifying you that this is an appeal covered by that notice and ask accordingly that you stay this appeal.’

In some csses the notice (approx one side of A4 so rather too long to type out) is attached though in others- two on my desk- it isn’t.

A colleague has just received a postponment notice from TS for one of his appeals (again for a client where Reg 35 has never been in contention). It does rather look as if DWP is asking for ALL WCA appeals to be stayed.

Dan_Manville
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Section 26 notice attached. It’s not got any client details on it so I see no harm in sharing.

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1964
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TS now appears to be sending an amended acknowledgement letter when ESA appeals are lodged, to the effect that ‘your appeal may be delayed’. I’ve not seen one yet but two clients have rung me this morning having recieved it.

Edited to say- I’ve now seen one. The standard acknowledement does indeed now contain an additional line- ‘We are sorry that there is likely to be a delay in dealing ith the appeal’.

[ Edited: 21 Nov 2014 at 11:07 am by 1964 ]
Tom H
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Thanks 1964 & Dan.  That’s very interesting.  The SSWP is relying as I suspected on Section 26(2)(b) and (4) SSA which gives the FtT the opportunity to consider making any of the decisions mentioned in my last post as an alternative to staying proceedings. 

On re-reading IM I think my initial reading of it was over enthusiastic.  It’s very helpful in that it:

(i) holds that it is necessary to speculate about the future types of work-related activity a claimant might be expected to do and, it follows, requires details of the actual work-related activities in an area (as opposed to generalised, or typical examples that had been sufficient for some previous UT judges),

(ii) defines substantial risk in a sensible way (a risk “that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case”) and

(iii) holds that the fact a claimant may be able to do some work-related activity is by no means fatal to his/her chances of passing Reg 35(2) – again some previous UT judges had, worryingly, suggested that it was.

However, it doesn’t, as I’d initially thought, compel FtTs to find Reg 35(2) is satisfied where there is some work-related activity on the list provided which a claimant would not be able to do.  I was a little confused about how it didn’t follow in the UT’s view that inability to do an activity would not automatically mean there was a substantial risk to health if you had to do it (para 110).  But I think I understand what it is saying now.  Substantial risk doesn’t automatically result from a person not being able to do an activity.  For example, they might be mentally strong enough to challenge (by recon/appeal) any sanction and get by in the interim, or they may have the organisational skills to re-negotiate any action plan that did contain unsuitable activities. Or they simply might be able do continue doing the activity despite its unsuitability.  Each case on its own circumstances given the purpose of Reg 35(2) which is a safety net.  So IM is likely to be a real benefit for people with severe mental health issues who could rightly be described as vulnerable and for whose health sanctions could be disastrous.  But it isn’t clear how, assuming the DWP do eventually produce region-wide lists of activities, the judgment will improve the situation of people with less severe mental health or physical problems or, indeed, people like Charlton, with alcohol dependency or other drug addictions.

The trigger to the substantial risk occurring is the person being found not to have LCWRA.  That leads to a progression of consequences.  Whereas for Reg 29 it is now settled that those consequences include the effect on mental/physical health of (i)  being told that you are fit for work, (ii) the journey to/from work and in the workplace itself and (iii) perhaps fruitless job searches/interviews, IM identifies a similar progression of consequences for those found not to have LCWRA, namely, the effect of (i) having to attend a WFI, (ii) actually participating in work-related activity and (iii) being sanctioned for failing to participate.

And whilst the UT is critical of the structural problem that affects ESA administration, namely the way the WCA precedes work-related activity decision making without any guarantee that the former informs the latter, it doesn’t follow I think that a FtT couldn’t accept a DWP submission to the effect that a claimant would on balance not be expected to do a particular activity that’s on the list of potential activities.  Risk management principles alluded to by the UT do not alter the fact a DM/FtT still has to decide Reg 35(2) based on what is more probable than not (51%).  The DWP don’t have to show that a person definitely (eg beyond reasonable doubt) would not be made to do the activity.  Admittedly, its response to the UT in IM, in effect “trust us” was never going to be accepted and, it has to be said, totally disingenuous given what goes on in the real world.

However, that doesn’t mean the above structural problem isn’t going to present serious evidential problems for the DWP when it tries to persuade a FtT that a person would not be mandated onto particular activities.  Whilst the UT acknowledges that a practice of making facts found for the WCA conclusive for the later work-related activity decisions wouldn’t be appropriate, it suggests tribunals would be more willing to accept DWP assurances about unsuitable work-related activity at the Reg 35(2) stage if there was at least greater information sharing between the WCA and work-related activity DMs.  Until that happens, the DWP is going to struggle to be credible.

Still, that doesn’t mean claimants can expect to automatically pass Reg 35(2) every time the DWP fails to persuade a tribunal that on balance an activity would not be expected of a person.  That’s simply because there might still not be a substantial risk to the claimant’s health in those circs as mentioned earlier. 

The safety net envisaged by IM is certainly not as encompassing as Judge Gray’s “protective cloak” in MT.  There’s reference in IM, incidentally, to the SSWP being granted a stay of a proposed permission to appeal request against MT (para 37).  Anyone know what happened to that?  I need to read MT again to decide what parts of it are consistent with/survive IM.  Mind, before then I’ll probably change my mind again re IM.

[ Edited: 21 Nov 2014 at 12:29 pm by Tom H ]
Paul_Treloar_CPAG
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1964 - 21 November 2014 09:45 AM

TS now appears to be sending an amended acknowledgement letter when ESA appeals are lodged, to the effect that ‘your appeal may be delayed’. I’ve not seen one yet but two clients have rung me this morning having recieved it.

Edited to say- I’ve now seen one. The standard acknowledement does indeed now contain an additional line- ‘We are sorry that there is likely to be a delay in dealing ith the appeal’.

Isn’t the root cause of this apparent staying of all ESA appeals linked to this paragraph:

109. In our view, it would not be difficult for the Secretary of State to make a submission explaining the law and to provide information about types of work-related activity.  In practice, if the Secretary of State considers that a claimant does not have limited capability for work, he will also consider that the claimant does not have limited capability for work-related activity.  In the submission it would generally be sufficient to refer only to Schedule 3 and regulation 35; it will not be necessary to explain why the Secretary of State does not consider those provisions to be satisfied because that will be implicit in his response to the main issue on the appeal.  In relation to Schedule 3, it could be stated that none of the descriptors relating to the first 14 of the activities in Schedule 3 will be satisfied unless the claimant has scored 15 points under any of descriptors 1(a), 2(a), 3(a), 4(a), 5(a), 6(a), 7(a), 9(a), 11(a), 12(a), 13(a), 14(a), 16(a) and 17(a) in Schedule 2.  It would then be necessary to set out only the descriptors relating to activities 15 and 16 together with regulation 35 and a list of the types of work-related activity available in the relevant area.

Basically the Judges are stating that in any appeal regards LCW and ESA entitlement, the SoS should also be addressing the issue of LCWRA through submissions about sch.3 and reg.35, regardless of whether the appellant themselves has argued that any of these provisions apply?

I’ve had a chat with Mike our legal officer and we think that for clients who are only appealing the question of LCW under sch.2 and/or reg.29, you may be able to argue under sec.26(4)(b) of SS Act 1998 that it is in the interests of justice for their appeal to be heard by FtT, as the outcome of CoA decision will not materially affect that decision in any way, and given that it’s likely to be many months before the case is heard, it would be unjust to deny them the extra benefit they would receive once the question of their LCW is decided upon. It’s far from certain that this would be agreed to we think, but it might hold water.

For other people who are explicitly raising issues around support group entitlement however, it’s hard to see a way around the application of sec.26(4)(a) as the CoA decision will clearly have a potential impact on the assessment of such appeals.

Dan_Manville
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I can say with some certainty that region wide lists of potential WRA that a person might be referred to are not on the cards.

A hypothetical list is in development based on what sch2 descriptors a person satisfies but it will be strictly that; hypothetical.

There is no mechanism for an individual WPP to notify DWP what it is doing with participants, nor has it been suggested that one be put in place. Prime WPPs were given some money, told to get on with it and report what job outcomes they acheive. Often the actual activity is contracted out again.

Job outcomes, sanctionable doubts and changes of circs are all that Primes need report.

One thing that was admitted during the hearing is that DWP doesn’t know what activity is being conducted by WPPs. That has been developed using a “black box” approach; don’t ask don’t tell.

It would take a substantially rebuilt IT system and sheafs of new guidance for WPPs to tell DWP what they do with the people they refer to them. Instead DWP intends to suggest what WPPs should do with them and hope it sticks.

I have said elsewhere that IM might have an effect on sanction apepals because most of the time a DM deciding a WP sanction doesn’t know what the claimant has been sanctioned for not doing.

IM goes very deep to the heart of that and I suspect, if it holds, that it is a substantial thorn in the Work Programme’s side.  but I would say that :)

[ Edited: 21 Nov 2014 at 01:14 pm by Dan_Manville ]
Peter Turville
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We are now having cases adjourned on the day where Reg 35 may be at issue. But only in cases where Reg 35 was not raised in the original appeal or otherwise brought to the SSWPs attendion at an early stage (for example, by sending a copy of the apppelants sub. direct to the DWP).

For example, in case where Reg 35 only became a possible argument on receip of medical evidence or the cases was referred to us at a late stage and the claimant / adviser had not originally specifically raised reg 35.

In cases where Reg 35 was original raised the tribunals are proceeding to hear and decide the appeal and to allowed on Reg 35. Presumably because the SSWP has had the option to address Reg 35 and the body of caselaw but has chosen not to.

The reasons given for the adjournment in such cases:

“In order for the Tribunal to be able to assess the risk to the appelllant or others of being required to undertake work related activity it requires evidence of the work related activity that is available in the appellant’s area.

Within 28 days the SSWP is to provide a supplementary submission setting out evidence of the work related activity that is available in the apppelllant’s area and therefore what the claimant might reasonably be required to do.

If the SSWP does not comply with these directions the file is to be referred to a duty judge.”

No issue of staying pending a possible appeal in IM has been suggested by judges in our cases so far.

Given the UtT judges comments in HS (CE/1882/2103) “Adjournment for SSWP to provide information about WRA is generally a futile exercise” and my assumption that FtT judges are well aware of that reality (for all the reasons in posts above) I wonder why they are still adjourning?

It might now be good practice to raise Reg 35 where it may be an issue at the earliest and each stage in the MR/appeal process. However it might mean in some cases a judge will adjourn the case regardless of the point at which Reg 35 is raised. Leaving the tactical question of whether it is in the clients interest (given the possibility of adjournment) to raise Reg 35 at all?

[ Edited: 21 Nov 2014 at 01:44 pm by Peter Turville ]
Tom H
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With respect, I think we’ve all got the fact that para 109 is one of the paras responsible for the current DWP stay requests, although paras 104, 106 & 107 are more relevant than 109.  The heading in the judgment above para 102 “Information to be provided to the First Tier Tribunal” gives us a clue. 

Paras 108-109 are addressing the SSWP’s objection about producing a submission including a list of WRA in circs like IM where the DM had not even found IM to have LCW.  The UT is saying that it would be enough for the SSWP to produce a list of WRA in those circs as the reasons the DM wasn’t satisfied about Reg 35(2) will in most cases be obvious, ie he wasn’t even satisfied that the person scored 15pts never mind Reg 35(2). 

Para 113 concerns the situation where the DM has put the person in the WRAG but is not satisfied that the SG applies.  In that situation, fuller reasons can be expected in the SSWP submission as to why Reg 35(2) did not apply.

Paul, I think you’re saying the same thing as I said in post 34 about the stays as well.

I agree Dan that it’s not going to be easy but not impossible to produce the lists.  One of the problems I think is that there’s far too few work-related activities and they just put everyone on the same ones (one sizes fits all).  In that sense it’s not hard to produce a list.  The problem for them is that most of the small amount of activities that the WPP provide are quite clearly unsuitable for a lot of people.  I like the way the SSWP suggested (invented?) WRA of internet training or small group sessions and enjoyed your response at para 56 particularly your pointing out that she didn’t even have a computer.

[ Edited: 21 Nov 2014 at 01:49 pm by Tom H ]
Steve_h
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Is there now a blanket policy of staying every ESA appeal until IM is decided?

Dan_Manville
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I don’t think so and certainly not at CTS.

Still not had any notification that they’ve actually appealed yet.

Peter Turville
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We are now seeing DWPs response to the above Adjournment & Directions Notice (see post 41). The response to the direction for a further submission is a notice to stay.

Remarkable how DWP can respond so quickly to Directions where Reg 35 is at issue when normally the ignore them!

However in other cases (same judges in same sessions) tribunals are allowing other cases under Reg 35 (having also carefully noted an award of points under Sch 2).

As, so far, these have been cases where the claimant was originally ‘found fit’ (rather than WRAG to SG appeals) it will be interesting to see how DWP now respond to tribunal decisions made under Reg 35.

Presumably if the SSWP does appeal and is granted leave in IM the number of stayed cases will stack up for months / years. Potentially this could leave many claimants stuck on the assessment rate during that period!?