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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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Daphne
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Panel finds FtT decision on reg 35 erroneous in law because insufficient evidence of WRA and directs SofS to provide detailed evidence for new hearing -

‘Since the Secretary of State has not provided us with the evidence necessary to determine this case, it must be remitted to the First-tier Tribunal.  Subject to any further direction by the First-tier Tribunal, we direct the Secretary of State to make, within one month of this decision being sent to him, a further submission to the First-tier Tribunal setting out the all the various types of work-related activity that a claimant living in Wolverhampton in November 2011 might have been required to do, identifying with reasons any that it is submitted this claimant would not realistically have been expected to do.’ 

Decision available here -

http://www.osscsc.gov.uk/Aspx/view.aspx?id=4295

will be up on briefcase soon…

Dan_Manville
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Blimey that was quick.

I only got the decision yesterday!

My favourite bit is this…

112… we suspect that the present failure to pass on information to the work-related activity decision maker will mean that in some cases the First-tier Tribunal will be unable to make predictions with sufficient confidence to conclude that the reg 35(2) risk does not exist and so will be entitled to conclude that if the claimant engaging in and of the forms of Work Related Activity that might be imposed on a claimant in the relevant area would give rise to the reg 35(2) risk the claimant must (my emphasis) be treated as having limited capability for Work Related Activity.

115… the underlying purpose of reg 35(2) is best served… by a finding that reg 35(2) applies rather than by leaving vulnerable claimant (sic) to take the risk of a decision that causes the… risk to materialise or would do so if not successfully challenged.

 

 

 

[ Edited: 25 Sep 2014 at 04:25 pm by Dan_Manville ]
benefitsadviser
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Ive always wondered how they can ascertain any risk to the health of the claimant if found fit for work related activity when no clear definition exists of what WRA means in the first place.

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MNM
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Great work Dan,

I am trying to get my head around this long decision and see how Reg 35(2) applies to physical health conditions.

I have a client (former IT technician) who recently satisfied Reg 29 at fTT due to severe tendon related issues in arms (bi-laterally) and neck pain which compromises upper limb movements and makes standing and sitting and using the tools of his trade (keyboard/mouse) near on impossible for any period over a few minutes. In our submissions we covered Reg 35(2) but fTT Judge felt appellant would be able to engage in the work-related programme within the WRAG.

No SOR yet and Decision Notice makes no reference to type of activities which can be done. 

I think I am going to need to read this decision at length several more times. 

 

Dan_Manville
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Thanks

The moral of this story is that unless the Sec State can actually tell a Tribunal what activity a person might be sent on then the Tribunal is at liberty to find that, where any Work Related Activity might trigger the risk, then reg 35(2) could apply.

Second guessing what WRA a person might be able to do is troublesome because there’s no guarantee in the current scheme that a person will not be mandated to activity where the risk might crystallize; thus there is scope for a Tribunal to cast the net widely. I did suggest there were problems with the requirement that any activity is “reasonable” but they didn’t go as far as I might have hoped in considering that; they didn’t need to in the end.

Admittedly it’s more difficult for physical conditions because most will not preclude the wide range of activity that a MHP might and you’d need to show a risk; the mere fact that activity might be painful doesn’t necessarily evidence risk just restriction.

MNM
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Admittedly it’s more difficult for physical conditions because most will not preclude the wide range of activity that a MHP might and you’d need to show a risk; the mere fact that activity might be painful doesn’t necessarily evidence risk just restriction. [/quote]

Agreed -

My client with minimal activity will result in inability to use arms and grip for days/weeks.  This of course has heightened his fear and anxiety to over-exert which is documented by physiotherapist and GP. 

For 35(2) we have (i) disablement, and (ii) risk

My thoughts are whether the risk is deemed ‘substantial’ enough. 

In a sense, client may have to try and engage in a programme and if this triggers symptoms then a supercession. 

Your case opens a wealth of thoughts…

Dan_Manville
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MNM - 29 September 2014 01:10 PM

...

Don’t forget we’ve got a new definition of “substantial risk” in there too. “A risk that can not be sensibly overlooked” I think it was. The meter of “substance” in your “substantial” has a different perspective than we’ve come to comprehend over the 19 years we’ve had this in play.

If his grip might be impaired to such an extent that there’s a wider detriment to his wellbeing, feeding himself, cleaning after the toilet and the like,  I’d certainly be arguing that it shouldn’t be overlooked.

Tom H
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Well done Dan.  I’d be surprised if they don’t appeal this however. 

It’ll be interesting to see what they come back with regarding not only the range of work-related activity available in Wolverhampton but, more importantly in my view, their identification with reasons of any activity that the claimant would not realistically have been expected to do (paras 106 & 123).  The FTT is then expected to “assess the evidential force of such a submission” (para 107). 

What happens for instance if, as I suspect is likely to happen, the SSWP comes back with a list that contains some activities which it accepts would have been too demanding for the particular claimant, but it contends that, precisely for that reason, the WRA DM would not have expected the claimant to do it? 

Whilst the UT felt that an administrative practice of info sharing between WCA and WRA DMs would be likely to reduce the chances of the substantial risk to health ever arising, it makes it clear that even if such a practice had been in place it would not have affected its decision (paras 94, 95 & 99).  Consequently, it seems the F-tT to which this case is remitted would be unable to consider any promise from the SSWP that the claimant would not have been expected to do a particular type of work-related activity.  That’s because (i) section 17(2) SSA 98 means the WRA DM is not bound by that promise (para 99), (ii) A practice requiring a WRA DM to consider a WCA DM’s earlier reasoning “would probably be inappropriate” anyway for the reasons given in para 99, and (iii) it would be “inconsistent with the pragmatic approach taken in Charlton” (para 95).

It would appear to follow that unless the F-tT is able to rule out a substantial risk to health in every one of the work-related activities on the SSWP’s list then it would have to err on the side of caution and decide Reg 35(2) in the claimant’s favour.  That makes it a landmark decision and the judges (and Judge Gray previously) should be congratulated for providing protection to vulnerable claimants. 

However, I’m at a loss, with respect, to understand when an inability to do a particular type of work-related activity would “not necessarily imply” a substantial risk to health (para 110) nor how evidence from a WFI that post dates the WCA decision under appeal could possibly be relevant to the question of Reg 35(2) in that appeal.  The 3 Judge panel appears to realise this latter point itself (see last sentence of para 113).  Also, given its earlier reasoning, it’s unclear why it asks the SSWP to include reasons why a particular type of activity would not have been expected of the claimant (para 123).

All in all, excellent result Dan.  Well done again.

[ Edited: 29 Sep 2014 at 05:47 pm by Tom H ]
Dan_Manville
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Tom H - 29 September 2014 05:39 PM

  I’d be surprised if they don’t appeal this however. 

They haven’t yet…

However, off the back of this (and I’ve been trying not to bang on about it) at least in part comes CPAG’s interest in taking JR against a sanction decision where a claimant has been sanctioned for failing to engage in WRA that is contra-indicated by their ESA85; people scoring under activity 16 who’ve been put forward for group work is an example that springs to mind.

I think it’s really important so if people do spot ESA sanctions please bear it in mind. If anyone wants a chat from a welf perspective before taking the jump I’m happy to discuss it. dan dot manville at wolverhampton dot gov dot uk

I’d love to find the client myself but the vast majority of mine are in the Support Group now so I’m struggling. The two that aren’t are insulated from WP for other reasons.

I have it on good authority that they’ll make it easy for anyone who finds the case…

[ Edited: 10 Oct 2014 at 03:53 pm by Dan_Manville ]
Daphne
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Yes I know that they are very keen for case studies - details at the beginning of the discussion thread here if you might have someone -

http://www.rightsnet.org.uk/forums/viewthread/7039/

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I received a DWP response today for a normal ESA found fit appeal.  We mentioned Reg 35 in the grounds, so they have asked that the appeal be stayed ‘pending DWP applying for permission to appeal to the Court of Appeal in the case of IM v SSWP’.

Dan_Manville
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Well we’re ready for it; solicitors and counsel are on the starting blocks already.

Mike Hughes
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So, just out of interest, has anyone come across a work-related activity that can be undertaken safely and can enhance a claimants prospects of moving towards fitness for work?

Don’t all rush at once 😊

Better still, perhaps those ministers who reckon jobcentreplus biggest administrative headache was coping with all the thank you cards for sanctioning people (!) should be deluged with all those examples we have of people undertaking such activities and finding that it was just what they needed to get them back into the wacky world of work!

No?

It’s just that it strikes me that current caselaw is moving towards the point where we’re all ticking boxes and the end result is almost inevitably a reg 35 exemption and yet logically if one looks at it the other way around the stupidity of the whole sorry process is exposed.

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I was advised by a DEA in January 2014 that ESA WRAG awards with a prognosis/reassessment date of 18 months or less would be automatically referred onto the Work Programme.

I am planning to use this information in a Reg 35 appeal in the future.

Where the DWP states “telephone wfi every 6 months can be arranged” I want to see this formalised in an agreement with the claimant. Otherwise, I believe the WRA to be Work Programme conditionality; CVs, regular f2f appointments, courses or group work.

It is important that Tribunals consider this when setting recommendations for reassessment <18 months in WRAG = work programme.

Dan_Manville
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bexber - 11 November 2014 02:28 PM

I was advised by a DEA in January 2014 that ESA WRAG awards with a prognosis/reassessment date of 18 months or less would be automatically referred onto the Work Programme.

I am planning to use this information in a Reg 35 appeal in the future.

Where the DWP states “telephone wfi every 6 months can be arranged” I want to see this formalised in an agreement with the claimant. Otherwise, I believe the WRA to be Work Programme conditionality; CVs, regular f2f appointments, courses or group work.

It is important that Tribunals consider this when setting recommendations for reassessment <18 months in WRAG = work programme.

If you track back to Touchbase from November 13 I think you will find the announcement re mandatory referral to WP. I’ve got a copy somewhere but I’m flying out in 5 minutes so I’m stumped.

However taking IM into account; it is not the risk from the referral but the postulated risk from the activity that is under assessment. You can borrow the postulate from Judge Jacobs in NS.

The fact that a person would not be referred is not material. If you have a good hard stare at IM you will find commentary as IM certainly would not have been referred to WP when the Ft Tribunal heard the appeal.