ESA Appeal SOS response

Any one experienced this

Case papers today

The Decision
1.  XXXXXXX has not supplied Med Ev of her limited capability for work since disallowance date.

Facts of the case

point 12 XXXXXXXX is no longer claiming ESA and is in reciept of JSA The claim started day after disallowance date and the tribunal may wish to note that in order to recieve JSA certain criteria needs to be met

namely

(i) available for work
(ii) actively seeking work

from our record xxxxxx is complying with all these conditions and is showing reasonable prospect of obtaining employment.

I cannot believe this in reality XXXXXXX claimed JSA as she would have not been able to eat pending her MR request which took over 9 weeks and she is actually on a immediate period of extended sickness with a sicknote covering her for 13 weeks.

I am so MAD

Thank you

Feeling the mad…...

History repeats itself and this is not too dissimilar to the situation for the old ICB appeals - claimants who did not pass the PCA had a choice of claiming IS with a 20% reduction, or claiming JSA showing they were capable of work, while the appeal went on.

I remember in appeal documents the DWP would try it on and put in signing dates, notices of job applications, etc that the claimant had done since being found capable of work -with almost the same comments as you have mentioned in your post.

I recall at the time that there was a piece of caselaw that said something along the lines of a claim for JSA was not inconsistent with the appeal for ICB so that claiming JSA itself was not something that should make the appeal fail. There was also an argument that a tribunal is bound to look only up to the date of the decision under appeal.

I have tried looking for the case law to no success, but of course the date of decision limit still applies ( I guess the DWP will argue although the job seeking is after the date of decision it is only just beyond the date, so can represent what the claimant was like at the time of the decision).

I do also recall though that tribunals paid little heed to the job seekers claim and DWP submission on it - and would even make successful (for us) decisions where a claimant had since found work in the meantime before the appeal was heard.

I would find out from the client exactly what job seeking they have done, perhaps get a copy of the claimant commitment and see whether they had put any “health” limitations down, and be ready to question the DWP’s statement about the claimant showing reasonable employment prospects.

Tell you what, it’d be another story if the client was having to demonstrate GPOW wouldn’t it?

Cake/eat/cake/eat, etc…....

Not worth getting mad about as the changes of circumstance post date the decision under appeal.

The only useful information would be that an offset may be required on any arrears due to JSA paid.

I’d be surprised if the JSAg was required for the decision you’re looking at. It may however be useful for any future decision.

I know I was just mad that the DWP think it is worth a mention. 

Gail Knight - 22 July 2015 09:12 AM

I know I was just mad that the DWP think it is worth a mention.

You should feel sad, not mad.

So did the ESA50 and face to face assessments fail to provide any excuses to refuse LCW status? Hence the resort to this snide, underhand and desperate attempt to justify the decision?

Nice one Benny.

And isn’t there still case-law/DM guidance to the effect that a JSA claim doesn’t prejudice a WCA appeal? I thought it was still extant.

1964 - 22 July 2015 01:08 PM

Nice one Benny.

And isn’t there still case-law/DM guidance to the effect that a JSA claim doesn’t prejudice a WCA appeal? I thought it was still extant.

You might want to try The Social Security Act 1998 12(8)(b.)

In deciding an appeal under this section, an appeal tribunal shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.

Point taken, but I was thinking of that specific issue (JSA claim not prejudicing appeal).

I think you’re looking for the ‘two hats’ decision - whatever it’s citation.

i.e. SoS cannot wear two hats by saying you’re fit for work but not fit enough for JSA - or something like that.

I’d be more than comfortable with the SSA 1998 as the start & end. I’m sure the submission writer(s) are acting more out of ignorance than malice

Wow! What in particular makes me mad is that a judge is never going to fall for that, but an unrepresented person, trying to muddle their way though the appeal process could be convinced by that into giving up and withdrawing. That is what is so disappointing and underhand about it.

Jane

That’s indeed what I was thinking of John.

I’d like to imagine it’s more cock-up than conspiracy but these days my cynicism knows no bounds.

it has to be cock up otherwise they could be in trouble…

As a civil servant, you are appointed on merit on the basis of fair and open competition and are expected to carry out your role with dedication and a commitment to the Civil Service and its core values: integrity, honesty, objectivity and impartiality. In this code:

‘integrity’ is putting the obligations of public service above your own personal interests
‘honesty’ is being truthful and open
‘objectivity’ is basing your advice and decisions on rigorous analysis of the evidence
‘impartiality’ is acting solely according to the merits of the case and serving equally well governments of different political persuasions

https://www.gov.uk/government/publications/civil-service-code/the-civil-service-code

Blimey- if only it were really like that….

I think the DWP forgot about the Civil Service Code many years ago, when they started becoming a politicised agency for delivering ideologically-driven policies.