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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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Dan_Manville
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Yes, the Sec State wrote to the UT on 5th Dec notifying them that they no longer intend to appeal.

 

BC Welfare Rights
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Thanks Dan.
That is excellent news, really well done with this case.

LJF
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So I was excited today as the stay has been lifted so the dwp finally provided the additional submission as directed saying what wra the client would be expected to do and how can they ensure he would be safe. Diabetes has lots of hypos
The dwp response was 1 page- we don’t have a list of specific activities for this client but the jcp say he could have to do things like do a cv and set up an email adress etc. And they cannot have anyone present to give glucagon in the event of a hypo!!
That’s it!!! That’s all there gonna do?
Oh well looks like he has gotta win then, regulation 35

Dan_Manville
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The irony in IM; it’s being a case at the inception of WP, is that there were no WP contractors in place in Wolvo when the decision was made so DWP have given us a list of agencies I might have been referred to but there is no mechanism for them to check what activities they could have provided.

I am hoping a sensible decision maker will revise in her favour…

Inverclyde HSCP Advice Services
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Decision made in light of lifting of challenge to IM. Note direction at 6e

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stevejohnsontrainer
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As mentioned earlier, the DWP continues to seek tribunal adjournments in relation to Reg 35 bids, in order to give them time to supply likely WRA information, and is claiming authority to do so from IM.

Here is para 117 of IM…

“…If the Secretary of State fails to provide the evidence we have said should be provided, the First-tier Tribunal is entitled to use its own knowledge, if it is confident that it is up-to-date and complete as to the more demanding types of work-related activity, or it may adjourn to obtain the necessary evidence or it may decide that it can properly determine the case one way or the other without the evidence. It depends on the circumstances and, in particular, on how vulnerable the claimant is.”

I think this apparently widespread DWP practice of seeking an adjournment is highly questionable and should be challenged because (i) the IM generated discretion is being fettered (IM only lists adjournment as one alternative), (ii) the DWP should have supplied this data already and it is clearly unfair that claimants should suffer more delays because of this incompetence, (iii) Dan has already pointed out that Para 112 of IM recognises that tribunals are permitted to authorise Reg 35 based entitlements in the absence of DWP generated WRA data (which is in line with Para 29 of CE/973/2013). I realise that most of these points have already been made.

In view of the above, how best should we be pressing for an early Reg 35 based tribunal decision? What about a pro forma of some kind bring these issues to the attention of the tribunal before they toe the line and adjourn? In the alternative (and in line with earlier comments), how best should we propose likely and locally relevant WRA to assist the tribunal in assessing substantial risk without the necessity of an adjournment?

Mark of Carnage
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stevejohnsontrainer - 17 March 2015 10:24 PM

As mentioned earlier, the DWP continues to seek tribunal adjournments in relation to Reg 35 bids, in order to give them time to supply likely WRA information, and is claiming authority to do so from IM.

Here is para 117 of IM…

“…If the Secretary of State fails to provide the evidence we have said should be provided, the First-tier Tribunal is entitled to use its own knowledge, if it is confident that it is up-to-date and complete as to the more demanding types of work-related activity, or it may adjourn to obtain the necessary evidence or it may decide that it can properly determine the case one way or the other without the evidence. It depends on the circumstances and, in particular, on how vulnerable the claimant is.”

I think this apparently widespread DWP practice of seeking an adjournment is highly questionable and should be challenged because (i) the IM generated discretion is being fettered (IM only lists adjournment as one alternative), (ii) the DWP should have supplied this data already and it is clearly unfair that claimants should suffer more delays because of this incompetence, (iii) Dan has already pointed out that Para 112 of IM recognises that tribunals are permitted to authorise Reg 35 based entitlements in the absence of DWP generated WRA data (which is in line with Para 29 of CE/973/2013). I realise that most of these points have already been made.

In view of the above, how best should we be pressing for an early Reg 35 based tribunal decision? What about a pro forma of some kind bring these issues to the attention of the tribunal before they toe the line and adjourn? In the alternative (and in line with earlier comments), how best should we propose likely and locally relevant WRA to assist the tribunal in assessing substantial risk without the necessity of an adjournment?

I think you’re spot on that the trick is to get the argument in as early as possible so you can simply say to the judge SSWP has already had more than enough time.

I have been adding a submission on IM as an attachment to the SSCS1 or sending one in asap before the hearing. Also attaching copy of CSE/276/2014 drawing attention to para 6 where Judge Gamble direction makes doubly clear what the SSWP is required to do. So far have had 2 of these at a hearing. One was allowed on IM without an adjournment and the other was adjourned and SSWP given 4 weeks to provide the list. In that case Judge suggested to avoid an adjournment a request should have been made direct to the department.

Steve, when you get back in front of a tribunal, presumably with no list, are you getting these allowed on IM without further ado?

past caring
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I’ve had a number of FtTs in the last couple of months where reg. 35 was in issue. Succeeded with all of them.

In one, where the appeal had initially been dismissed, the FtT decision was set-aside when I applied for leave to the UT - and the judge making that set-aside decision had expressly directed the SoS to supply the WRA information outlined in IM. SoS then applied for an adjournment of the re-listed hearing in order to have time to supply the info. This was refused, the direction repeated and the hearing went ahead without the info (and without the PO who had also been directed to attended). So no issue that, following IM, the appellant had to be given the benefit of the doubt re. WRA and reg. 35.

I think the long and the short of it is (as was apparent in IM itself) that the SoS simply does not have the information. Tough.

However, I’d take issue with the point at (ii) - I think in many cases it would be something of a stretch to say that the SoS should already have supplied the information. This is because;

a) There will still be a significant number of cases in the system where the decision and the appeal were made before IM was handed down.

b) It will also continue to be the case that in many appeals the only issue raised on the appeal (or the previous MR) is whether the appellant scores sufficient Schedule 2 points to satisfy the WCA - i.e. neither Schedule 3 nor reg. 35 have been raised.

This was true of the other appeals I have repped in - either the appellant had come to us only after submitting the appeals themselves or I’d taken over the cases and reg. 35 hadn’t been put in issue in the first instance. Succeeded on the basis of the oral and medical evidence being sufficient to show that the specific detail wasn’t needed and any sort of WRA would pose a significant risk.

So I think that some of this comes down to us as advisers - in cases where it might apply, we need to raise reg. 35 from the outset, both in MRs and appeals. I don’t think this requires a huge amount of extra work - the detail and the more complex arguments can wait until we’re actually preparing our subs. But something along the lines of,

“We contend that regulation 35 applies in the circumstances of this appeal. This is because Ms Y’s alcohol dependency is such that she drinks throughout the day. She would therefore be liable to be under the influence of alcohol whilst taking part in WRA - this would pose a significant risk to the health of others (i.e. the staff providing the WRA or other participants in the activity) were there to be any sort of emergency - e.g. if the premises needed to be evacuated due to fire. We remind the SoS of the Upper Tribunal decision in IM and, to enable the tribunal that will decided the appeal to properly assess reg. 35 risk, we request that he provide details of the WRA available to the appellant in her local area and, in light of her conditions, which of this activity he considers she would be able to participate in without significant risk.”

included in the appeal should be enough to head off any later adjournment request.

stevejohnsontrainer
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But surely IM has only highlighted a requirement that has always been there. Decision makers and tribunals cannot safely decline ESA without some regard to Reg 29/35 (following case law emphasising their inquisitorial role). If ESA is being declined, then tribunals etc must be concluding there is no substantial risk, which means they must have weighed risk against likely fitness for work/WRA situations. Isn’t the absence of this the ‘serious breach’ that CE/973 is going on about?

Dan_Manville
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The problem here is (as was argued in IM) DWP’s position on an all out WCA fail is that they don’t think there’s any prospect of SG entry for the claimant so why should they provide any info about what WRA might be available to a claimant?

Making sure DWP knows that reg 35 is in issue will put DWP on notice that they should be providing said info and thus, on appeal, will reduce the chance of an adjournment to give them another opportunity to provide it,

Not that they can anyway, but they need to have been given opportunity and a lot of reg35 appeals are being adjourned for that very reason.

Jon (CANY)
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I’ve recently had a case where in response to IM, the DWP have provided a 2-page bullet-pointed list of work-related activities that were potentially available in our area at the time of the decision under appeal, from the two relevant providers. They bold what they reckon are the ‘most demanding’ activities, e.g. “To attend a mock interview”, and underline the ‘least demanding’, e.g. “1-to-1 interventions with the health and wellbeing team”.

Are others seeing this, in cases where reg 35 is in issue?

Edmund Shepherd
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No, I did ask a couple of weeks ago, but the response was “we don’t hold this information and we have no guidance on how to deal with IM”.

Mike Hughes
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In reality this is what you’re going to get. Most JC+ offices will say there’s no list (and there isn’t) beyond the theoretical one we’ve yet to see. Some of the more over zealous (perish the thought but perhaps the more target oriented/under pressure/high profile ones) will attempt to produce “something” but even the “something” will be suspect and some rigourous questioning will allow it to publicly fall to pieces. I wonder, for example, what might happen if one were to ask the basis on which health and wellbeing interventions were chosen over mock interviews? Equally, I wonder what might happen if one were to ask from whence that information came or even wrote to the providers to establish which did what and how often. I suspect the outcome would not be pretty for JC+ and tribunals are going to pretty soon suss that they’re being taken for a ride and start making some fairly blunt assessments on the need adjourn and the substantive reg 35 issue.

Happy days.

Dan_Manville
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It’ll be great if there’s a change of administration in a couple of weeks; nobody will know what WRA might involve once the Work Programme’;s dismantled and even I’ll be able to got into the Support Group!

Edit… funny this thread should rear it’s head again today; I’m moving offices and having a huge chuck out and the original bundle of evidence and authorities has just gone for shredding. There was a wee tear in my eye!

[ Edited: 28 Apr 2015 at 01:01 pm by Dan_Manville ]
ranaway
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Hi all,

I attended a Tribunal User Group last week which discussed the implications of IM.

The judge in attendance advised that in the absence of SSWP providing a list of possible activities, he would refer to a similar list which was published for the Doncaster area—he said this list would be similar to WRA in the North East.

Has anyone seen this list to which he refers? It’s become relevant to a colleague’s Reg 35 appeal.

[The judge also advised the burden of proof for WRA list lies with SSWP but the burden of significant risk lies with the claimant and needs to be backed up with appropriate medical evidence eg. Psychiatrist report.]