× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

Tribunal “stands in the shoes of the decision maker” - can it make ANY decision that was open to the original DM?

past caring
forum member

Welfare Rights Adviser - Southwark Law Centre, Peckham

Send message

Total Posts: 1116

Joined: 25 February 2014

Here’s the scenario;

1. Client in WRAG - I assist her to apply for supersession to get into SG 31/3/2016. Good grounds and copious supporting medical evidence submitted.

2. No response/acknowledgement - or decision from DWP. By the time client tells me she’s heard nothing and I get around to chasing it, ESA work has gone entirely from Stratford BC and enquiries via the escalation numbers to this and other BCs yield no results - no-one can even tell me where the supersession request currently is.

3. Client receives ESA50 at the end of August 2016 - this completed with my assitance and returned beginning of Septemeber.

4. Negative WCA decision (0 points) 2/11/2016.

5. MR request sent 11/11/2016. This does a number of things;

- challenges 2/11/2016 decision. Copious (new) medical evidence supplied.
- raises issue of undetermined 31/3/2016 supersession request - copy of that request included, together with medical evidence that was supplied, Post Office special delivery reference number, together with the name of person who signed for the letter at Wolverhampton Mail Handling Site. Asks for supersession now to be determined.

6. MR decision 17/1/2017 (negative - “However submitted the medical evidence or information submitted at this Mandatory Reconsideration stage are not enough to enable us (the department) to change the decision” - 0 points).
No mention/acknowledgement of the outstanding supersession issue whatsoever…...

In most cases where there’s a persistent refusal to make a decision, JR - or threat of JR - is the only option. However, the only firm I’ve found in the last couple of years able and willing to take this work (PIL) had a bit of a high profile shut down in the summer - so options that way are exteremely limited/non existent. More importantly, I’m wondering whether the appeal will allow the tribunal to determine the supersession request…...

The DM who made the 17/1/2017 MR decision also had the 31/3/2016 supersession request before them, together with all accompanying evidence. Therefore it was open to that DM to determine both the supersession request and the MR request…..if that was something open to the DM, is it also open to the FtT?

nevip
forum member

Welfare rights adviser - Sefton Council, Liverpool

Send message

Total Posts: 3135

Joined: 16 June 2010

My view is that the tribunal can only make the decision that a DM can make when the DM has actually made it.  Until then there is no appealed decision (except the MR one) so the tribunal has no jurisdiction over that particular issue except to direct the DWP to carry out the supersession.

[ Edited: 24 Jan 2017 at 06:06 pm by nevip ]
Paul_Treloar_AgeUK
forum member

Information and advice resources - Age UK

Send message

Total Posts: 3196

Joined: 7 January 2016

Sadly, I’m inclined to agree Paul. How can they “stand in the shoes of the decision maker” if no decision has been made?

nevip
forum member

Welfare rights adviser - Sefton Council, Liverpool

Send message

Total Posts: 3135

Joined: 16 June 2010

I’ve been thinking further on this.  Your only other way is to try to argue that the decision under appeal was made pursuant to the supersession request.  It’s a long shot, particularly if that request was not in front of the DM, or there is no record of it.

nevip
forum member

Welfare rights adviser - Sefton Council, Liverpool

Send message

Total Posts: 3135

Joined: 16 June 2010

Obviously pc, you don’t need me to tell you to get the whole file and any other documentation, proof of receipt of post etc, in front of the tribunal as well as a PO to explain what the hell went on.  I’m sick of this.  I’ve had cases where it’s taken me the best part of two years to get supersession requests in ESA cases acted on and in front of a tribunal.  I’ve just taken on another one.  I dont expect it to be concluded any day soon.

past caring
forum member

Welfare Rights Adviser - Southwark Law Centre, Peckham

Send message

Total Posts: 1116

Joined: 25 February 2014

I know Paul, I know. Up to last year I had a couple of successes with JRs or threats of JR in cases where it was taking an inordinate amount of time to make a decision - though that should never have been necessary in the first place. But finding a solicitor who can/will take the work on now? - the big/well known public law firms are only interested in test cases, not the kind of small fry that this kind of thing represents.

As you suggest, I may well try to swing it that the ESA50 and WCA examination was pursuant to the supersession request and see how that flies….

From my very latest MR request, completed yesterday;

2. Under the heading ‘The reasons for this decision’ the decision maker states (page 1 of decision, second paragraph),


“On 5-Jan-2017, you requested a mandatory reconsideration of the decision of 02-Nov-2016. You stated you disagree with the decision. You submitted copies of your consultant @ Universal College Hospitals. However submitted the medical evidence or information at this Mandatory Reconsideration stage are not enough to enable us (the department) to change the decision.”


Leaving aside the untruth in the first sentence*, where does one even begin? This is complete gibberish. One has to seriously question the ability of an individual capable of writing such nonsense (in a legal document from a government department) to actually comprehend the conditions of entitlement to ESA, let alone to go on to apply them properly.


(*the mandatory reconsideration request was sent on 11/11/2016 under Post Office Special Delivery reference ***********. The Post Office’s online ‘Track & Trace’ system confirms delivery to the Wolverhampton Mail Handling site on 15/11/2016, with the letter having been signed for by a ‘J Higgs’. It was not until we chased the Department on 3/1/2017 that the request for mandatory reconsideration was eventually passed to Wembley DRT to be actioned.)

Does the fact that I’m a bit miffed show?

 

nevip
forum member

Welfare rights adviser - Sefton Council, Liverpool

Send message

Total Posts: 3135

Joined: 16 June 2010

“Does the fact that I’m a bit miffed show”?

Nooooooo!!

Peter Turville
forum member

Welfare rights worker - Oxford Community Work Agency

Send message

Total Posts: 1659

Joined: 18 June 2010

past caring - 25 January 2017 10:25 AM

I know Paul, I know. Up to last year I had a couple of successes with JRs or threats of JR in cases where it was taking an inordinate amount of time to make a decision - though that should never have been necessary in the first place. But finding a solicitor who can/will take the work on now? - the big/well known public law firms are only interested in test cases, not the kind of small fry that this kind of thing represents.

As you suggest, I may well try to swing it that the ESA50 and WCA examination was pursuant to the supersession request and see how that flies….

Is it possible (doesn’t sound like it from the sequence of events) that the ESA50 & WCA was arranged in response to the application for supersession? Its not unusual for DWP to make a referral for a WCA before they will determine such application (after many months of waiting for the WCA to be arranged). Of course its equally (more) likely that the supersession application has never been dealt with.

If there has been no decision on the supesession and the WCA was just a routine re-referral the tribunal will be limited to looking at the decision following the routine WCA.

That means a decision on the supersession is still outstanding, must be made and will cover the closed period from the date of supersession application to the date of decision following the routine WCA.

As you have all the documentation regarding the supersession request why not serve ‘notice before action’ on the DWP solicitor setting out those documentation and stating that the action you now expect DWP to take is to make a decision on the application within X working days. You do not need a solicitor for a ‘notice before action’ letter. given the documentary evidence you have from my experience ‘notice before action ’ is likely to work wonders!

 

[ Edited: 25 Jan 2017 at 04:45 pm by Peter Turville ]
past caring
forum member

Welfare Rights Adviser - Southwark Law Centre, Peckham

Send message

Total Posts: 1116

Joined: 25 February 2014

Peter - cheers. The first route is what I’ve decided to go with - i.e. play dumb, I was mistaken all along…...ESA50 and WCA examaination were in response to the supersession request…..the termination decision (which handily enough does not identify which decision it’s superseding - or even that it is a superseding decision) is both a supersession decision ending entitlement and a refusal to supersede decision refusing to place client in the support group from an earlier date. So both issues are part of the appeal and are properly before the FtT for determination.

The very worst outcome will be either the Department having to go on record that the supersession has never been acted on or the FtT directing that it carry out the supersession - handy to have for any letter before action.