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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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Tom H
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Peter Turville - 28 November 2014 10:07 AM

..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!?

Disagree. The whole point of section 26(4)(b) is to allow the FtT, if it thinks it’s in the interests of the appellant, to put the appellant in the WRAG as I mentioned at post 34.  That at least gives the person more than assessment phase ESA whilst waiting for the outcome of any appeal against IM. Should the SSWP go on to lose any appeal against IM the FtT decisions putting people in the WRAG may then be superseded where appropriate under section 6(2)(c)(ii) D&A allowing arrears of the SC to be paid.

The Dept cannot force a FtT to stay proceedings using section 26(2)(b) that it is currently relying on in the notices.  It could effectively stay appeals by asking the tribunal to refer the appeals to the SSWP under section 26(2)(a).  But it’s relying on (2)(b) not (2)(a) it seems at present.

The notice can be issued in individual cases if the Dept feel that the outcome of the appeal concerned would be affected by the outcome of any appeal against IM.  If it starts issuing notices in every case then such behaviour would be susceptible to judicial review.  It would at very least fetter its discretion with blanket notices.

Edit:  Re-Read your last post.  The bit I highlighted above was your final paragraph but your penultimate para ended with:

.”.it will be interesting to see how DWP now respond to tribunal decisions made under Reg 35”

Putting those together, if you’re asking what would happen if DWP appeal FtT decisions that put people in Reg 35 either because the FtT wasn’t served a notice or because the FtT felt that Reg 35 was still applicable despite a notice having been issued (eg, because it took the evidential approach to Reg 35 used before the UT decisions in IM and MT), I think the Dept would find it difficult to suspend payment of the SC under Reg 16 D&A, especially if the FtT’s reasons made it clear that it had decided the appeal based upon the most unfavourable outcome of any appeal in IM to the present appellant.  But even if the SSWP decides to suspend payment in such cases I suspect the best it could do would be to suspend the difference between SC and WRAC (after all, if the FtT felt the person should be in the SG then it would certainly have put them in the WRAG failing which) so the person should still not be left on assessment rate. 

But I don’t think you are asking that given you mention “stayed cases” in your final paragraph. 

 

[ Edited: 28 Nov 2014 at 01:27 pm by Tom H ]
Bryan R
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DM says

“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.”


If a Physical condition had led to hospital admissions prior to and during the ESA assessment this would indicate that it was not ‘restriction’ and would provide ample evidence of risk.

Also due to the combination of Drugs eg: Pregablin, Morphine Tramadol and Diazepam and the conclusive body of medical evidence on the effects of these drugs on Motor function and Cognitive Function this would also demonstrate substantial risk and not be restriction.

As an aside Ben Goldacre Big Pharma states that no studies have ever been done on the interaction of two or more drugs. Therefore I am urged to speculate that as their is no clinical evidence that can be used by the DWP, how can they rule out any risk? On the Balance of probabilities they certain wouldn’t seem able to. Or am I mising a trick here?

Pete C
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Although it probably won’t apply to cases where the person has been found not to have LCW the following must apply to appeals to go from the WRAG to the SG, even under Reg.35.
Under Reg 5 of the Employment and Support Allowance (Work-Related Activity) Regulations 2011 the Secretary of State is required to provide a claimant with a written action plan;

“Notification of work-related activity and action plans
5.—(1) The Secretary of State must notify a person of a requirement to undertake work-related activity by including the requirement in a written action plan given to the person.
(2) The action plan must specify—
(a)the work-related activity which the person is required to undertake; and
(b)any other information that the Secretary of State considers appropriate.”

I seldom if ever see such thing (one I did see was that the Claimant was to contact me re an appeal which led to some interesting debates about how this would harm him or me!) and I have always argued that in the absence of the action plan,which the claimant is legally entitled to, the Tribunal is free to consider the entire range of possible activities, including enforced work placements under the amended version of s.55 WRA 2012

“In section 13 of the Welfare Reform Act 2007 (work-related activity), after subsection (7) there is inserted—
“(8)The reference to activity in subsection (7) includes work experience or a work placement.”
 
SI 2530/2012 on 03.12.12

Dan_Manville
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Don’t forget that reg 9 permits contracting out of action plans and in light of DWP’s ignorance of what WRA the providers are providing it is clear that it is the Providers that are responsible for providing and reviewing that plan.

Tom B (WRAMAS)
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DManville - 02 December 2014 09:03 AM

Don’t forget that reg 9 permits contracting out of action plans and in light of DWP’s ignorance of what WRA the providers are providing it is clear that it is the Providers that are responsible for providing and reviewing that plan.

Interesting. This is something that had slipped my mind.

Where the contracted provider is not providing written copies of action plans, or refusing to reconsider them - what options are there?

Dan_Manville
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tbidmead - 02 December 2014 10:07 AM

Where the contracted provider is not providing written copies of action plans, or refusing to reconsider them - what options are there?

Reg 5 tells us that an Action plan must be given to the client, reg 7 tells us that the action plan must be reconsidered on request and a decision given to the person.

That decision is not -to my knowledge- prescribed so presumably is appealable. If they refuse to reconsider I know at least one barrister who would be very interested in hearing about it and I’d suggest ringing CPAG.

But then I’m conscious I’m quite heavy handed in these things and a complaint detailing the statutory requirements might be in order, but bear in mind three months to file for JR is tight so it might be worth a call to CPAG anyhoo.

Tom H
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The UT in IM made the following point at para 113 in the context of the level of detail to be expected in the SSWP submission where the claimant has been put in the WRAG by a DM so that the only dispute is whether he/she should be in the SG:

“Secondly, in at least some of those cases a work-focused interview will have been carried out and the provider may have considered whether the claimant should be required to carry out work-related activity before the appeal is heard by the First-tier Tribunal.  Information about the outcome of such consideration of the claimant’s case is likely to be relevant to the First-tier Tribunal and reduce the element of prediction required and so ought to be provided to the first-tier tribunal where possible.  Thus, in CMcC, Judge Bano was able to take account of an employment adviser’s abandonment of any meaningful form of work-related activity out of concern for the claimant’s health as a reason for finding that regulation 35(2) should have been found to apply in her case.  In other cases, the effect of evidence may be to show that the provider is well aware of the claimant’s state of health and is unlikely to overlook risks.  This suggests that the provision of information should be a two-way process.  It should be remembered that s 12(8)(b) of the Social Security Act 1998 applies to the application of such evidence and so it should only be taken into account so far as it is relevant to the position at the time of the decision of the Secretary of State.”

I think the caution at the end of that passage should not be overlooked nor the UT’s opening qualification “in at least some of those cases”.  In CMcC to which it refers the appellant had been in the WRAG for some time before a new WCA kept her in the WRAG.  It was that decision which was under appeal.  Whilst her action plan included a note that was added after the date of the decision under appeal, it is clear from paras 11 & 12 that Judge Bano was influenced by the fact that the employment adviser had effectively suspended any work-related activity requirement well before the decision under appeal as well as the evidence of the healthcare professional which also pre-dated the decision under appeal.  In other words, the action plan was relevant because it existed before the WCA incl Reg 35(2) decision under appeal was made.

Consequently, I think it remains the case that FtTs are unable to take into account the evidence of the contents of action plans agreed post the Reg 35(2) decision under appeal.  Simply because of section 12(8)(b) which the UT quote above.  After all, the ratio of IM is that the risk needs to be considered at the point at which Reg 35(2) is considered by the DM which, therefore, requires speculation about the types of WRA they may have to do.  In para 113 the UT is saying that the need for such speculation is lessened when the person has already been doing work-related activity.  But that is work-related activity commenced before the decision under appeal.

Returning to the DWP notices asking for a stay, I can understand why the DWP would prefer FtTs to stay appeals under subsection 26(4)(a)  rather than make the most unfavourable decision to the appellant, ie putting them in WRAG, under (4)(b).  That’s because it might otherwise be difficult for the Dept to keep track of the latter successful appeals.  I don’t think tribunals have an option in their decision notice drop down list to the effect that they might have put the appellant in the SG instead of the WRAG were it not for 26(4)(b) preventing them.  That raises the issue of how the Dept may supersede such FtT decisions based upon 26(5) SSA and Reg 6(2)(c) D&A if it transpires that they lose any future appeal against IM.  It can only supersede them if it knows about them.

[ Edited: 2 Dec 2014 at 11:36 am by Tom H ]
Dan_Manville
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Or might it just be that reduced numbers of ESA appeal hearings is politically expedient at the moment? [/cynic]

LJF
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My case has been stayed pending the dwp deciding if they are appealing. My client is in wrag group and appealing to go in support group. I requested and the judge made a direction stating whilst the appeal is stayed the dwp cannot make my client do any compulsory work related activity. Even said this makes sense whilst they are waiting to decide if there would be a risk to him
Thoughts?

Inverclyde HSCP Advice Services
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From Pat Clark WRO Inverclyde Council:

‘I have received today (10/12/14) a ruling from Judge Gamble in which he lifts the sist applied in one of my cases on the basis that “the Sec of State has confirmed that he no longer intends to appeal against the decision of the Three Judge Panel in IM V Sec of State…” No doubt the rest will begin to follow.

He has directed the Sec of State to make a further submission re the implications of IM within days, following which we will have twenty eight days to reply.’

Dan_Manville
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If ever there was a case for emoticons on this board this is it…

AdviceShop
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Phil Cole - 11 December 2014 09:19 AM

From Pat Clark WRO Inverclyde Council:

‘I have received today (10/12/14) a ruling from Judge Gamble in which he lifts the sist applied in one of my cases on the basis that “the Sec of State has confirmed that he no longer intends to appeal against the decision of the Three Judge Panel in IM V Sec of State…” No doubt the rest will begin to follow.

He has directed the Sec of State to make a further submission re the implications of IM within days, following which we will have twenty eight days to reply.’

Hi Phil

Is there any chance of a copy of this being available. I think it’s useable in an appeal I have coming up? Is it in the public domain?

Peter

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Regards

PC

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AdviceShop
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Phil Cole - 11 December 2014 09:52 AM

Regards

PC

Thanks Phil

You’re a gent!!

Peter

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Is it definitely confirmed that SSWP is no longer appealing IM?

I’ve just seen a directions notice today, issued on 15 December, posted out on 17 December but signed on 5 December where stay is still being referred to (see below)

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