Thinking Heads Needed.

Client stops work in 2004 and then becomes unable to work April 2006 and is ‘awarded’ incapacity benefits and NI credits but never specifically told what the benefit is and subsequent letters and annual uprating only state your rate of benefit due to incapacity is changing due to… Most likely was income support based on incapacity for work I know.

Client subsequently called in for medical with decision later issued that following medical ibenefits and NI credits ceased as no longer considered incapaable from November 2008, appeal was submitted. Whilst waiting for the outcome of the appeal the jobcentre advised to claim the ‘new’ benefit ESA as ‘not entitled to income support’.

Before the appeal could be listed called in for new medical on ESA and again found no longer incapable from October 2009, ESA reinstated pending appeals. Again called in for medical and found no longer incapable this time from January 2010 this was appealed but didn’t inform rep and ESA put back into payment at the reduced rates. At various points applications for crisis loans had to be made whilest files were shunted around and about.

1st Tribunal found in favour of the client at hearing in March 2010 reinstated entitlement to NI conts,and benfit from and including Nov 2008 on the same day 2 appeal was found in favour of the client finding incapable of work from and including Oct 2009.

Duely contact the section to say as the first appeal was successful client should be reinstated to Income Support based on incapacity for work, plus backdated (less crisis loan esa etc.). Informed nope cant do that until outstand appeal resolved relates to ESA, I pointed out two hearings on same day and the reinstated Income Support would have been paid at higher rate than the ESA so ESA appeal/decision not relevant other than lending extra supportt o clients incapacity ion the first place. Informed that both decisions are in but 3rd ESA appeal outstanding. Having suggested that this 3rd ESA appeal is now moot since IS should have been in payment told nope ESA decision out weigh.

End up at 3rd Appeal Again find in favoutr of client finding incapable of work from Jan 2010, and Chairman/Judge also points out in decision that the original decision to find in favour and incapable from November 2008 established a continuing entitlement and therefore the subsequent claims for esa had ‘no practicle effect’.

Have been attempting since then to get the payments sorted out but continuin to run into the ‘we cant discuss this with you unless client is present,, we will get section to call back, until were told no trace of any appeals or decisions on the system and nfinall insult yes the decsions are all on the system but it was ‘never handed off to the section to pay’.

Mean while the client has been called in for another medical assessment and notified today that they are no longer incapable of work and ESA stopped.

Now then. Since they have never been notified that the entitlement to income support was back in payment only ESA, and repeatedly told no entitlement to any backdating as amount of ESA was more than entitlement to IS (it wasn’t) and they were examined under the ESA criteria, was this subsequent medical actually valid ( I believe it wasn’t but that in the circumstances the ‘approved medical assessor’ having examined under the wrong criteria committed an assult technical or otherwise? Since letters, phone calls and prolonged begging have gone with no responce is it worth while once again pointing out that they have consitantly failed to respond to the original tribunals decision and possibly caused client to be assulted?

Just had phone conversation with ESA and IS section both saying that case is held ‘off system as sensitive case’ and that neither section have responsibility for paying. IS should have been paid on single peson + disability prm (2008 £73.80 wk) and 2009 (IS 78.45) (ESA 64.30 for 13wks then £89.80 after assessment period) on the face of it still appears to have backdating missing. Although more iffy on which aseessment criteria should be used.

I know it’s not much help but have you thought about going through the complaints procedure?  It usually works for me when I have tried all other avenues.

I normally try to get the client to claim reduced rate Income Support until the tribunal if i feel their case has merit.

A new ESA claim only used as a last resort due to the carry on you have described. The negative side is that it can cause short term hardship as payments are reduced however it does keep the IS claim going and any reductions are backdated anyway if the appeal is won.
Won’t be able to do this for much longer though once the IB>ESA migrations start coming thick and fast.

Thnaks for the suggestion.

Client very very (at least has been) to ‘rock the boat’ hence the third appeal as they ‘didn’t want to be a bother. Have got the MP involved just want to be certain that I am attacking on the right front first. I keep saying the 1st 29 yrs are the worse starting to believe it now.

Mind you just venting my anxst it a help! Last phone call did at least confirm my suspicions that the file was being held clerically non the system although the sensitive flag is making me wonder.

Neil

Yes have to keep telling the ‘vertual’ contact that IS does in fact still exist. Local BDC still (last I heard) trying to contact 100+ single parents that they didn’t have to claim JSA instead of IS when the youngest went over the lower age limits.

This client was repeatedly told couldn’t claim IS again, had to be either JSA or later ESA. Went for months after the appeal put in with nothing but Crisis loans and family support.

News Flash Section Just phoned ‘Unable to discuss anything without client being with me!’

Time to go home and boil my head.

First, a person is not entitled, as a matter of law, to ESA if he is entitled to IS (section 1 of the Welfare Reform Act 2007).  If Income Support is not sorted you might want to write to a senior manager.

Second, I am not a criminal solicitor but my best guess is that a person cannot be assaulted if he has given consent, unless consent was induced by a criminal act (say, fraud) or specifically outlawed by statute, which would then fall under a different charge, as in same sex relationships when we lived in less enlightened and more intolerant times.  Technical assault arising from negligence might be grounds for civil proceedings.

Third, if there is little or nothing to be gained by pursuing the assault issue in itself, I would go for an ex gratia, consolatory payment based on “gross inconvenience resulting from persistent error, gross embarrassment, humiliation or unnecessary personal intrusion and/or severe distress” as per paras 123-160 of the Maladministration guide.

Re Assult was just fishing with that one although the idea was put forward with a heavy hint a senior person who shalt not be named. Have to admit that last phone call has about finished me for the day particularly as they admited there has been no action on the file since ‘before christmas’ and although I could provide dates and times (thank god for day books) and even that the last time I actually spoke to someone that I was told the hold up was that ‘payments not been handed off..’ that was not enough to suggest that I could speak on clients behalf, nor that I had dealt with the matter, and anyway ‘we’ve never had a reclaim off ESA section to be able to calciulate what they are owed’, I asked if this is a ‘handoff’ and apparently yest it is, and ‘If you ask them to send us a reclaim it will take a lot of work to sort out’!. Silly me there was me thinking it was what they were there to do!

Oh and just relaised I’ve used single person under 25 figures and client is over 25, was incapable of work for more than 52 weeks so should have qualified on that ground for the disability premium therefore IS would have been more than the ESA.

Letter to section supporting the latest appeal, copies to MP Minister and seek the compensation and even woirk out the relevant amounts of IS as apposed to ESA.

Thanks for the clarity of thought and suggestions. Will post the results.

Neil

As a (previous) criminal Lawyer, I do not think that assault charge would be appropriate - basically consent negates assault (unless very serious.) There may be remedies for compensation under maladministration, or under general law in the civil courts. Since those that qualify for benefit have a right to be paid the appropriate amount they are entitled to, if DWP refuse to do this they are acting unlawfully. This is a breach of statutory duty which could found a potential action in the civil courts, with potential compensation, and/or try Judicial Review to be used to enforce DWP to meet their duties. However, this is a difficult area of law of which I have little experience. I would advise that you/your client seek further advise from a solicitor, who has experience in this field. If your client is on low income he may qualify for free/cheap legal advice, which no doubt the solicitor can inform you about prior to any appointment. There certainly used to be an online directory at the Law Society website giving details of local solicitors/areas of law covered and whether they provide free/cheap advice which if still in existence might help.
It may well be that simply writing a letter advising that Judicial Review will be sought will be sufficient.
Hope this offers a few more ideas if avenues to explore.
Lid26

I am not a lawyer but am aware of a case where a conviction for assault was secured even where there was no dispute the “victim” consented to the “assault”.  The verdict was upheld in the ECtHR.

True, the context couldn’t have been much further removed from the circumstances being considered in this thread (er, it involved S & M!).  However, the judgement did effectively set a bar whereby an assault may have been committed where an injury is more than “trifling” or “transient”, even where consent had been given to the “assault”.