Mandatory revisions before appeals

Mandatory revisions before appeals - The DWP is introducing a new rule to require claimants to ask for a revision before they can appeal. The ‘mandatory revisions before appeals’ rule will be introduced for universal credit and personal independence payment in April 2013. For all other DWP-administered benefits it will be introduced in October 2013. When it is in force claimants will need to send their appeals direct to the Courts and Tribunals Service.

Does anyone know if the DWP have decided to pay ESA at the assessment rate when at review stage?  I dread to think the problems this will cause!

I don’t know either but we were discussing it earlier. If anyone does know the latest on it we would be most grateful for an update.

hi - see this thread -

http://www.rightsnet.org.uk/forums/viewthread/3888/

highlights that DWP told us -

‘The position is that ESA will only be paid during the reconsideration period if an appeal is subsequently lodged.’ and ‘The policy intent is that ESA would be backdated to the point at which benefit ceased. Note that medical evidence continues to be required. And yes if arrears of ESA are subsequently paid any other benefit such as JSA would have to be deducted if paid for an overlapping period.’

cheers ros

Thanks Ros. Just wondered if there had been any subsequent developments I had missed. Presumably not, then.

not that i’m aware of. anyone else heard anything?

I think I’m clutching at straws really.

I’m just getting increasingly concerned as to what we’re going to do with some of the WCA failures during the revision stage, especially in view of the increasingly protracted delays in dealing with revisions. Many of them haven’t a hope in hell of being accepted as available for and actively seeking work (or are even capable of attending the JC in some cases).

Looks like we’re going to be relying on food parcels and anything else we can scrounge, beg or borrow for them.

Thanks guys.

Yes this is my fear exactly.  What will people do whilst the revisions are being dealt with? Many people will not be available for work or be able to actively seek work.  The JCP advisors will be telling people that they need to claim ESA.  People not knowing the system will make a new claim for ESA, which will be refused etc, etc and in the mean time the client will have no money, their HB and CTB will stop, rent arrears, CT arrears…need I go on! One big mess!

Lord Freud has stated in parliament that where a claimant is found fit for work under the ESA regs, there will be no payment of ESA during the mandatory reconsideration – see the quote below from Hansard, 13th February.

‘I turn now to ESA. At the moment, if someone appeals a refusal of ESA, it can continue to be paid pending the appeal being heard; this is not changing. What is changing is that there can be no appeal until there has been a mandatory reconsideration. So there will be a gap in payment. In that period-and I repeat that applications will be dealt with quickly so that this is kept to a minimum-the claimant could claim jobseeker’s allowance or universal credit. Alternative sources of funds are available. Of course, he or she may choose to wait for the outcome of the application and then, if necessary, appeal and be paid ESA at that point.’

Yeh, right..

The backlog locally at the revision stage is currently at least 6 months (and around 13 months for migration cases).

Cookie - 21 February 2013 04:01 PM

Thanks guys.

Yes this is my fear exactly.  What will people do whilst the revisions are being dealt with? Many people will not be available for work or be able to actively seek work.  The JCP advisors will be telling people that they need to claim ESA.  People not knowing the system will make a new claim for ESA, which will be refused etc, etc and in the mean time the client will have no money, their HB and CTB will stop, rent arrears, CT arrears…need I go on! One big mess!

I cannot see how any JC+ adviser can refuse a claim for JSA in these circumstances or advise that an ESA claim be made unless there has clearly been a change in the claimant’s difficulties. The Secretary of State has made a decision that the person ‘does not have limited capability for work’ and I don’t think the JC+ adviser has the power to refuse to allow or to obstruct a claim being made, there is nothing in Reg 4 of the claims and payments regs that gives the sec of state any right to refuse to take a claim.

To refuse to allow or to obstruct would also effectively contradict the existing ESA decision and I don’t think that the DWP could or should have the legal or moral right (natural justice?) to make mutually exclusive decisions about the same set of circumstances. Unless the claimant says they are adamant that they will not be looking for work or willing to engage with any ‘reasonable’ requirements the JC might set I think that JC+ will just have to lump it.

I think that the operative word is ‘reasonable’ and I imagine that for some people the jobseeking plan will have to be fairly minimal. I can see a lot of appeals against sanctions coming up!

Unfortunately, as a strict matter of law there is no such decision that the person ‘does not have limited capability for work’.  That is a determination necessary to a decision that the person is not entitled to ESA (the outcome decision).  So, there would be nothing inherently contradictory that there are two SoS decisions sitting side by side that is; the claimant is not entitled to ESA or JSA.

However, I agree that the SoS has no statutory power to refuse to accept and adjudicate on a claim for JSA.  It is up to an employment adviser to sit down with the claimant and determine whether he is available for and actively seeking work.  However, that decision is not the employment adviser’s to make.  If the EA refuses to sign off on the jobseekers agreement then he must pass any JS agreement, including one proposed by the claimant, to a decision maker to determine the claim.  All the evidence, including the employment adviser’s opinion should be passed to a decision maker.  A DM can instruct an EA to sign off on an agreement proposed by a DM.  If the claimant is unhappy with the agreement he can appeal, or he can sign it and then ask for a variation.  This is probably the better option as he will get benefit paid from an earlier date.

The problem, of course, is how many claimants, let alone jobcentre plus staff, know this.

Interesting point about the points score being a determination leading to a decision rather than a decision in its own right. Could it be argued that a decision refusing JSA in these circumstances is based on an equal determination that the claimant is in fact not well enough to be a jobseeker.

If this is the case then surely the DWP would have to respond to any appeal against refusal of JSA by setting out what criteria they used to make the decision and how they justified their application to that particular case. I can’t help but wonder if that wouldn’t lead straight back to Sch.2!

Hi Pete

I agree that the SoS would have to explain himself.  If a claimant, say, with generalised arthritis says, I’m willing to work for 40 hours per week and will write three letters to employers a week, then the SoS must be prepared to produce some evidence that the claimant is unable to do this in order to refuse his JSA claim.  The ESA85 is unlikely to provide this without it being exposed to criticism, so unless he is prepared to write to the claimant’s G.P. then he is bound to accept the claimant’s word, unless on all the known facts and evidence, it is highly unlikely that the claimant will be able to do as he claims.

This can’t be an unintended consequence, can it? They are fed up with so many people appealing - solution: make it too hard.

Absolutely. Transparently so. In spades.

Re the JSA v ESA issue- the fact is that in practise, many clients are simply not going to be capable of making (and sustaining) a JSA claim whilst within the mandatory revision stage. I can think of at least 5 clients I have assisted with WCA appeals in the space of the last couple of weeks who have mental health issues (including vascular dementia in one case) or learning difficulties which would make it quite impossible for them to maintain a JSA claim (I very much doubt any of them would be capable even of remembering to sign on when they were supposed to, let alone manage to cope with visiting the JC without active support and intervention, which- let’s face it- is increasingly thin on the ground in view of restricted local budgets).

Even in the old PCA days, there was rarely a point in which it was claim JSA or nowt (those who clearly weren’t going to cope with JSA could opt to recieve reduced-rate IS). It wouldn’t be so bad if we knew the revision decision would be made within a couple of weeks, but it won’t be- it’ll be months, just like it is now. Not to mention the added complications (revision decision issued, client doesn’t understand it/open post/engage with local services due to nature of disability- we find out decision issued several months later, appeal late, late appeal not accepted, etc, or appeal sent to TS, TS notifies local BDC appeal made, local BDC insist they’ve not been notified, we spend hours playing piggy in the middle..)

I think it’s one of the many ongoing recipes for the perfect storm, I really do.

“I think it’s one of the many ongoing recipes for the perfect storm, I really do.”

This is a brutal policy which can only lead to widespread hardship.  We are seeing more ESA referrals from MP’s than ever before with claimants in deep distress.  This can only increase.  Reform is supposed to be synonymous with improvement.  Where is the improvement for those on the receiving end of this unnecessary measure?  There will only be unreasonable delay, hardship and suffering.  The insidious consequences of the government’s entire ‘welfare reform’ programme on benefit claimants are unprecedented in my life time and coming at a time where MP’s are trying to vote themselves substantial pay increases, when millions of ordinary workers are having pay frozen or cut, are utterly shameful.