We have recently developed an argument essentially based on Howker that the PCA as currently applied has been made without the authority of parliament and is therefore ultra vires. Its actually a synthesis of an article by Ken Butler (Advisor 103) and earlier work by Chris Orr. The consequence being that every single IB removal based on a PCA is arguably invalid with no way for a tribunal to put it right. It's brand new so few results as yet (one chairman adjourned an entire day for written submissions, another rejected the arguments then allowed the appeal on the merits when there wasn't any).
Our Howker submission is available here: http://www.rightsnet.org.uk/pdfs/Howker_submission.doc
All queries happily answered and please let me know how you get on.

A copy of my article Raising Consciousness - Appealing capacity for work decisions after Howker is available here. Its been reproduced with links to all the legislation and caselaw referred to within it.

The article originally appeared in issue 103 of The Adviser.

The starting point is in fact on the Benefits and Work sitehttp://www.benefitsandwork.co.uk/

direct link to benefitsandwork.co.uk story was published to rightsnet news in march

Appealing capacity for work decisions after Howker: Using ultra vires arguments in appeals against PCA decisions

These are interesting arguments but I do wonder about the worth of raising the argument as a matter of course, which seems to be what you are implying. I am interested how you go about deciding which clients you decide to use the model submission with? Surely if you have a client who, following interview, appears to have a good case on facts and evidence, you have a duty of care to present these as a first line of attack, as it were? Winning an appeal on a case where you acknowledge that your client didn't have any merit to their appeal seems a slightly odd victory, and presumably open to challenge by the DWP when they recieve the tribunal decision. Of course then, it may be that your argument would then be investigated by a Commissioner to produce a definitive response.

Just to stress, I have no problem at all with what is being drawn out through developing caselaw and subsequent application, I am merely enquiring about how you take decisions of when and how to use this argument, on what will have to effectively have to become a testcase with Commissioners if it is to have wider application?

Find below a variation of the submission. The point here is not that
the wrong evidence has been gathered because the wrong questions have been asked (which is of course true) but rather that there has been no PCA at all. Therefore 6(2)(g) cannot apply and a tribunal could not do a PCA.

Effect of Invalid Personal Capability Assessment

The Court of Appeal in “Howker” decided that the amendments to the Social Security (Incapacity for Work) (General) Regulations 1995 made by SI 1996/3207 were ultra vires as the Social Security Advisory Committee had been misled as to the effect of those regulations.

The Court of Appeal were dealing specifically with reg. 27.

In CIB/0884/2003 Comm Jacobs concludes that following “Howker” the amendments to activity “14” were similarly ultra vires, generally he concludes that “The other amendments made to the 1995 regulations by the 1996 regulations are not an issue in this case. Tribunals dealing with cases involving those amendments will have to decide whether they are covered by the reasoning in the “Howker” case which I have applied in this decision”

I would go further and say that the failure to apply the un-amended version of Schedule II means that there has been no application of the Personal Capability Assessment ans therefore no valid decision.

Section 171C sub paras 1 & 2 of the SSCBA 1992 states

“Personal Capability Assessments

171C.-(1) Where the own occupation test is not applicable, or has ceased to apply, in the case of a person, the question whether the person is capable of work shall be determined in accordance with a personal capability assessment.
(2) Provision shall be made by regulations
(a) defining a personal capability assessment by reference to the extent to which a person who has some specific disease or bodily or mental disablement is capable or incapable of performing such activities as may be prescribed;
(b) as to the manner of assessing whether a person is, in accordance with a personal capability assessment, incapable of work.”

Therefore if there has been no personal capability assessment there can be no determination in accordance with the act or regulations.

A personal capability assessment is defined in reg 2 of the IFW regs

“personal capability assessment means the assessment defined in part III of these regulations”

This is of course set out in Schedule 2 of the same regulations (regulation 24)

The personal capability assessment is entirely a statutory creation.

If the decision maker in applying the points has used an invalid schedule which they must have done then there can have been no determination and therefore no valid stopping of benefit.

Thanks for the interesting response Paul. You are quite right in your assumption that when technical arguments apply we run them in every case and request that they are decided as a preliminary matter before any consideration is given to the merits. Should the technical argument succeed clients have the result they want without the ordeal of a hearing and if it fails grounds have been established at the outset for a commissioners appeal. Tribunals are keenly aware of this and the 'lever' applied by such arguments can often produce a win on the merits in what appears to be a weak case. Of couse the department can appeal, but of course they can appeal regardless of whether a technical argument is deployed or not. And, in any event, we only advance arguments we believe to be right. That said if you think the argument is flawed please tell me why asp.
Duty of care - I can't agree here Paul. The converse is true inasmuch as firstly we would be failing to do the best we could for our clients if we knew of an argument which would assist them but neglected to use because on paper their case looked strong. Where would we be when it all falls apart at tribunal and a clear ground of appeal isn't there because we haven't been bothered to argue it? Secondly if we only advanced technical arguments in weak cases we might as well say to the tribunal that we don't believe the client has a case on the facts. Such an approach cannot be consistant with any interpretation of a 'duty of care'. As for "odd victory" I'm a mite baffled and a bit concerned. We do not cherry pick our clients, we take on anyone who has a case however slim it may be and to anyone who is serious about being non judgemental the fact that a case is weak on the merits should be irrelevant to the decision to represent and to the degree of enthusiam and committment that goes into the representation. I hope you agree.

Mick, you have clarified my original concern vis a vis running both technical arguments and the actual merits of the case - i just couldn't tell if you were stating that you only used the technical argument or not - hence my duty of care comment, which was assuming that you only used the technical arguments and not consider the actual merits of the case.

Yes, i totally agree that using these sort of technical arguments, either as an introduction or as a fallback, is an acceptable way to proceed - knowing when to introduce such an argument is not an exact science. I have found some tribunals will view a client's case with suspicion if you begin your submission/presentation with an technical argument, rather than arguing the merits/facts of a case first. However, leaving it until the end can seem equally dodgy, as well as running the risk of not being allowed to say anything else after a long hearing.

As for "odd victory", i don't suggest for a minute that you cherry pick clients but winning a case with no merit does leave the strong possibility that the DWP/LA will appeal against the decision and your client is no further forward really. Maybe I'm being picky with words but your statement that "the fact that a case is weak on the merits should be irrelevant to the decision to represent" is not the same as stating that the tribunal "allowed the appeal on the merits when there wasn't any" - the former implies the case has some hope, however minor; the latter that the case had no merit. I am a total advocate of the need for independent representation at tribunals and am painfully aware of the time and commitment needed to do the role properly.

As to your argument, and Chris' - Howker stated, in no uncertain terms, that it was only concerned with the effects of reg.27(b). CIB/884/2003 then went onto to note that:

"Other amendments
13. The other amendments made to the 1995 Regulations by the 1996 Regulations are not in issue in this case. Tribunals dealing with cases involving those amendments will have to decide whether they are covered by the reasoning in Howker, which I have applied in this decision." - the reasoning in Howker was "that the issue for me was whether that was an accurate description of the effect of the amendment. If it was not and its effect was potentially adverse to claimants, it was covered by the reasoning in Howker. I accept that Mr Lewis correctly identified both the issue I have to decide and its significance."

Is your argument that the Schedule is, by definition, amended to the adverse effect of clients? If so, I disagree because it is clear to me that within the latter decision, by explicitly looking at the effect of para.14 of the schedule following amendment, and also highlighting the Howker reasoning necessary, there is no argument that the IFW schedule has been amended to the adverse effect of all claimants. It is each amendment that must be considered, rather than regulations as a whole.

However, that is only my opinion and it is definitely an interesting line of argument to run with - if you do decide to try to take it forward as a test case, I would advise you to speak to CPAG (who took Howker to CoA) - it is vitally important that any case taken on as a test case is robust and hopefully produces good case law. Good luck

Paul-


This whole thing about "merits" and a separation between a "technical argument" and one "on the facts" is a bit confusing to me.

Firstly if a case succeeds because the Tribunal accepts that the evidence obtained from the medical by the DWP does not discharge the burden of proof (because the questions are not the statutory ones) and this is correct then that case clearly has merits. If it is the case that the client would not pass the PCA if properly applied, that does not change the fact that the decision as made is incorrect.

Secondly, it is misleading to separate out a technical from a factual issue. The technical question is what law is relevant to determining the appeal. The factual issues are what facts does that law require you to find. If the first issue is wrongly dealt with then generally it will follow that the second one is too.


On the wider issue of the correctness or otherwise of the type of submission discussed here, I have some doubts (which I will post late when I have worked them out a bit).

Martin.

As regards the submission itself:

I am quite worried by the thought of this submission being used in every case. It will quite quickly end up at Commissioners where my guess is it could result in caselaw that makes it harder to run any technical arguments even in cases where they are appropriate.

1. Firstly, my understanding is that the PCA is not the examination carried out by the Approved Doctor. Rather it happens when the DM sits down, looks at the opinion of the Doctor and (one hopes) all the other evidence and makes findings about how to score the claimant under the Schedule. We all know that in practice this usually just involves rubber stamping what the Doctor says in the IB85, however I don't think that that practice changes fundamentally that the PCA is what is conducted by the DM.

2. Secondly, I accept that the amendments referred to by Ken in Advisor and on the benefitsandhealth site are unlawful and therefore that it is the older version that a Tribunal would need to look at.

3. Clearly, it seems that the IB85 form has not been changed to reflect this and it appears from submissions by the DM that they have clearly not considered the older form of the descriptors when they decide how to score an appellant.

4. However, I do not think that that would make every single PCA determination embodied in the decision stopping entitlement to credits or IB automatically invalid- yes the DM has considered evidence that does not address the statutory test and has not applied his/her mind to the correct test. However, that would only have made any difference to the particular claimant in a situation where had the correct evidence been gathered and the correct law considered they would have qualified- it seems ridiculous to say that where a person really doesn't have any problems (under either form of the descriptor) with say sitting for a length of time then because the correct law has not been considered the decision must go. The right determination will have been given on the sitting descriptor regardless of the fact that the DM hasn't caught up to date with the correct law.

5. The above is particularly true given the recent emphasis placed by the Tribunal of Commissioners on Tribunals having power to correct shoddy decisions. Cannot the Tribunal faced with such evidence and the fact the DM has not considered the correct law can go on to take evidence from the appellant, even draw inferences from other comments in the IB85 about how the appellant would fair under the correct descriptor and then apply itself the correct law and come to a conclusion. For example, even though the Approved Doctor will not have been asked the correct question on the tick box for sitting, generally they will have given some findings about how the appellant sat in the interview, whether they had full range of movements, tenderness etc- surely all of that evidence is as relevant to the correct descriptor as the incorrect one- it is only the tick box on which descriptor is chosen that can be doubted.


Given all of the above, I think the Commissioners will give short shrift to any Tribunal that accepts a very general submission that the PCA decision is invalid as it seems to be put here- that decision could make it harder in other cases where there is an issue that the particular descriptor words used made a real difference to the outcome.

I think a better approach is:

1. To flag up the correct descriptor wording whereever those descriptors are in issue.

2. To argue that therefore the opinion of the Approved Doctor is not a good basis on which to make a finding of fact in that particular case.

I know this is a lot more conservative than the approach suggested but hey......

I suppose the counter argument would be that the PCA has not actually been applied to the appellant at all because Sec 171C and the regulations made under it requires the DM be the one to conduct it and a Tribunal has no power to do the PCA itself. However, in practice all PCA appeals involve the tribunal looking at whether the PCA was correctly carried out.

I'd love to know what anyone else thinks.

Martin

Martin, thanks for your detailed contribution to the debate on this one. All this Rights Net malarky has resuled in a massive pile of work on my desk but I'll do my best to quickly respond to your main points.

1)Don't forget that whenever the department revokes an existing award of benefit the onus is upon them to prove that the decision is made in accordance with the law and correctly applies the law to the facts - R(S)3/90. There is a clear distinction here. For example it does not matter that someone has been overpaid IS because,say, they are claiming seperately but living together if there has not been a valid supercession of the IS award under S71(5)1992 Admin Act. If the terms of S71 were not complied with this would be our starting point and would not require the presence of the client (it would therefore fall within the definition of 'technical'). If an appeal were allowed on this or any other technical argument fine, if not then the issue would be whether we could show 'on the balance' that they were not living together (the facts or merits). This is my definition of 'merits'which is shared by many but I quite appreciate that the term can be used to refer to the strength of the case as a whole, however as this covers both types of arguments it is ambigious and therefore less useful.

2) I cannot hold to the view that we should not run technical arguments in case they produce bad caselaw. Of couse we should not argue any old rubbish but we think this argument is a good un. Although applying it in this way has radical implications for the current PCA, the extension of a previously established legal principle (which is all this is) is a conservative way for caselaw to proceed. Thus Howker was radical, 884/03 was conservative.

3) The reason we run technical arguments in every case where they apply and as a preliminary is set out in my response to Paul. You said the fact that the DM has applied the wrong test would only make a difference if the claimant would have qualified under the correct test. From the perspective of a DM arguing with a DM I can see the logic of this point. But we are not DMs! It is the department's onus, they have asked the wrong questions on the IB50, conducted the wrong medical on the IB85 and have consequently failed to conduct a PCA. Who knows what the claimant would have answered and what the doctor would have been awarded had it been done right. So no valid ground for supercession, the tribunal can't conduct a PCA (no application of CIB 4751 et al here!) and to adjourn for one would be a breech of Article6. It's as simple as that and you have it yourself in your last paragraph: "I suppose the counter argument would be that the PCA has not actually been applied to the appelant at all....."

Martin, the seperation seems quite clear to me - in talking about a technical argument, essentially a rep presents a case that an aspect of the law is deficient or being misapplied generally e.g. the argument above that each PCA test is being wrongly applied, regardless of the individual circumstances of the client.

In talking about a case decided on merits, I mean a case where the individual circumstances of the client are applied to the relevant legislation and decision is made on the basis of facts.

I do agree it isn't necessarily straightforward to differentiate between the two ideas in practise, but I do think that there are differences in approach - the former would usually be used with a view to developing caselaw, whereas the second with a view to getting a client through their appeal tribunal. This is why I was concerned about how the argument was being used in practise - I also share your concern about weak cases being taken forward as test cases and producing unhelpful caselaw, hence the recommendation to speak to CPAG as they took Howker originally and have much more expertise in this field. Hope that clears things up....

A case that is strong on its merits means a case that can be won. Whether that is on the basis that the wrong law has been used to make the decision or on the basis that the findings of fact embodied in the decision are wrong does not matter.

You cannot even begin to think about what the factual issues are until you have sorted out what the law is- until that time you won't know what facts it is necessary to find.

In general I wouldn't want to encourage people to see these two things as separate: they are so intertwined and dependent on one another that to do so leads to people not making arguments that should be made.....

hey Paul, maybe I'll just come downstairs to discuss this

Thanks Paul, I don't think we are far apart on this one. I may have introduced some ambiguity within my references to 'merits'- an appeal againt a decision disallowing IS where the client has, by his own admission capital of £50k would have no merit and we would not take it on. However someone who has self assesed themselves at 0 points still has hope. The thing about technical arguments (I think the distinction is valid and useful by the way) is that while they give eveyone extra chances to succed they are also a great leveller. If the facts are never explored because the tribunal finds the decision is invalid or the DM has failed to discharge his onus the subsequent decision will be silent on the evidence and any challenge can only be on the basis that the argument the have accepted is wrong in law. Therefore the weakness on the facts (or merits, I view the terms as interchangeable) is completely irrelevant.
The argument itself: yes, Howker was only concerned with 27B and 884/2003 with remaining conscious but so what? The principle that the amendments detrimental to claimants that were not referred to the SSAC are ultra vires is what is important. Commissioner Jacobs may have looked only at what was before him but he was also acutely aware that the principle had wider applicability.

Para 13 "The other amendments made to the 1995 regulations by the 1996 regulations are not in issue in this case. Tribunals dealing with cases involving those amendments will have to decide whether they are covered by the reasoning in Howker, which I have applied in this decision. Mr Lewis told me that all those amendments were described to the Social Security Advisory Committee as 'neutral' in their potential effect on claimants. The issue for tribunals is whether that is an accurate description."

Para 14 "It would, no doubt, be helpful to claimants and tribunals if the Secretary of State were to take a realistic view on the other amendments in the guidance issued to decision-makers and in the submissions made to appeal tribunals and Commissioners. But that is not a matter for me."

Of course this argument will end up at the Commissioners and maybe beyond and I will be talking to collegues up and down the country as events unfold just as we are doing now. Without Chris Orr's and Ken Butler's contributions the argument would not have surfaced and I acknowledged as much in my original posting. However, and notwithstanding that they do some brilliant work and produce invaluable publications, CPAG took CIB 4751 et al which arguably produced the worst piece of caselaw to hit welfare rights in years (and particularly for the advocates of technical arguments). And then they didn't appeal it! Make of that what you will Paul but from my perspective those seeking the holy grail of caselaw tactics should look elsewhere.

Interestingly, in a set of Incap Ben appeal papers that I have just recieved from the Appeals service, the S of S submission sets out the exceptional circumstances as contained in the 1995 regulations. It then goes on the explain the effect of the Howker decision, making the point that "In legal terminology the 1996 regulations are said to be ultra vires".

It goes on to say that " The result of the Court of Appeal's judgement is that the version of regulation 27 of the 1995 regulations which was in force prior to 6.1.1997 is restored and continues to have effect. This is why the original exceptional circumstances are quoted instead of the later, now disregarded, ones".

I seem to remember that not long after Howker, the S of S "rewrote" Reg27 and this time placed it before the Committee, who put it out to consultation. I do recall CPAG, NAWRA and other parties making submissions to the Committee, but after that it went very quiet. If the wording that i have quoted above is correct, does this mean that the "new" proposed amendments were not subsequently adopted?

Would like to hear from WRO's who are arguing that because of Howker.... PCA's are invalid, REG 6 (2)(g) cannot therefore apply or even as a last resort that a defective PCA is a breach of article 6 of the HRA.

I've had 2 incaps in glasgow and used a hybrid of Chris Orr's argument and parts of Mick Guy's submission (both on rightsnet). The presenting officer had no real arguement against it. The tribunal have adjourned to allow the Secretary of State to comment on the submission.

I would be interested to hear from anyone who has added a human rights angle to their submission in such cases. I would have thought that the IB50 and the IB85 were encouraging claimants and Medical Services staff to produce distorted evidence by unlawful means, which could in turn affect the outcome of the PCA . Maybe I'm jumping ahead of myself, but would like an opinion from the group on this issue.

Stephen I tend to think that as it deals with the right to a fair hearing Article 6 only comes into play at tribunal. Obviously I completely agree with your comments regarding the PCA but see Article 6 as more use as an argument against adjourning for a 'legal' PCA - but I might be missing somethinng.................

Mick, thanks for the reply. A colleague had alerted me to the potential for the appeal tribunal to attempt to correct the disputed PCA and as you say that was the main reason for my inclusion of the article 6 arguement.

As warned by my colleague, the tribunal did indeed try to make some noises about correcting the PCA, but on mention of article 6 they quickly decided to avoid that course of action (at least for the moment) and have adjourned to allow the SoS to comment on the Howker, PCA and reg 6 (2)(g) arguement.

Your initial submission and Chris's were invaluable for both of my cases as the clients had been directly affected by the disputed mental health descriptors. The article 6 issue was as you suggest merely a defence against any attempt by the tribunal to correct the PCA. Perhaps i should have been a little clearer in my first post. I think it's an important defence against such "corrective" measures that tribunals may attempt.

I essentially agree with Martin Williams Comment "You cannot even begin to think about what the factual issues are until you have sorted out what the law is- until that time you won't know what facts it is necessary to find."

It seemed that the appeal tribunal were set to attempt to correct a PCA where they had no real power to, and as a result deprive my client of the right to a fair hearing

In response to Stephen D, myself and a colleague both used Mick's arguement at two appeals last week. Both were heard by the same tribunal and dealt with in the same way. The Presenting Officer requested adjournments to consider the arguement and the chair directed the DWP to prepare submissions within 28 days. We then have a further 14 days to respond to their submissions.

Thanks for the update Sara - please let us know how it develops.
Good luck.

I'd appreciate it if someone could post the URL here for Chris Orr's argument...

"I've had 2 incaps in glasgow and used a hybrid of Chris Orr's argument and parts of Mick Guy's submission (both on rightsnet)."

(I've got Mick Guy's)

Thanks.

Fri 25-Jun-04 02:17 PM by ken

I believe that you may be referring to Chis Orr's posting of 16 June,
the current link to which is:

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=111&topic_id=205&sub_topic_id=210&mesg_id=&page=#211

Just want to say thanks for this. Brilliant stuff.

Tried the arguments for the first time this morning, at a tribunal hearing of 2 IB appeals. I used a submission that is intended to amalgamate the brilliant work of Ken Butler, Chris Orr and Durham WR Unit, and it also has CIB/844/2003 appended. A copy is available at the following link:

http://www.rightsnet.org.uk/pdfs/PCA_Howkersub1.doc

The tribunal allowed both appeals on the merits. Notably however, at the outset the Chairman announced that they accepted that all of the contested amendments were ultra vires, and that they would apply the pre-amended version in every case. They did not accept that the decision was technically invalid.

I should add that the Chairman in question is usually thought to be generous on the merits yet disinclined to allow technical arguments.

Steven, I know some chairs view rightsnet occasionaly and assuming that there has been some discussion amongst chairs, do you think this is perhaps a general view that other chairs will adopt?

Given that some chairs have already adjourned cases from the last few weeks, perhaps there is a consensus that Ken, Chris and Mick have essentially covered all the bases in all incap decisions post howker.

Stephen D

Seems possible. But I can't really say one way or the other, at this stage. If I hear anything further, I'll try to keep people informed.

Just a further point. Perhaps it wasn't clear from my posting, but the written submission was given to the tribunal in advance, before they announced they accepted the ultra vires point. Nevertheless the chairman did indicate that she had seen similar arguments before.

This one is still twisting my brain a bit. Anyway, personally, I cannot see that these arguments will ultimately succeed.

My reasons for this are as follows:

1. Reg 6(2)(g) as a ground of supersession is not affected by any of this unless it can be argued that there has never been an incapacity determination (if there has been an incapacity determination then the receipt of the report - whatever questions the Doctor was asked in that report- will be a ground for supersession).

2. Importantly the incapacity determination referred to by Reg 6(2)(g) is not the one in that decision- it is a prior determination (this is why a number of Comms. have said that you cannot use Reg 6(2)(g) for a case where there has been no PCA previously).

3. "Incapacity determination" is defined in Reg 7A of the D&A Regs as "a determination whether a person is incapable of work by applying the personal capability assessment in reg 24 of the SS (IFW) Regs 1995 or whether a person is to be treated as incapable of work in accordance with reg 10.... or reg 27".

4. The question then becomes does a DM sitting down and applying the PCA in its form as unlawfully amended not comply with the definition in Reg 7A. On that point:

a) How would the proponents of the argument that it does not, answer a situation where:

i) the DM had had the unamended schedule in mind at the PCA before the one in question

BUT

ii) had an incorrect interpretation of what one of the provisions meant (for example had thought that "sleep problems interfere with day time activities" only stretched to a situation where sleep problems actually prevented day time activities and hence applied too high a test).

Has that DM conducted an incapacity determination or not? Is it ok for the DM to misunderstand the law so long as s/he knows what the correct words are?


b) The fact that the "incapacity determination" that happened before or after the decision being superseded is not the one you are challenging in an appeal against a decision stopping IB or credits (it is merely the one that allows Reg 6(2)(g) to operate) is also interesting- the claimant clearly passed that PCA, or was deemed to be exempt from it or treated as passing it, that is why their benefit continued until the new medical which the DM who took the supersession against which the claimant is appealing thinks shows they now no longer pass the PCA. That means that the fact that the DM who did the earlier incapacity determination had the wrong schedule in their mind (the one that had the "unneutral" amendments in it that we now all agree were ultra vires) has made no difference whatsoever to that particular claimant- they managed to pass it anyway even in its harsher form, and so clearly could have passed it had the DM had the right wording in mind. In such circumstances it seems to me that it can be argued that there was an incapacity determination previously.

The answer to M. Williams is that the boundary between the
valid and the invalid is not something fixed.

For instance tribunal decides following "Wood" that if there is too big a gap between the medical and the decision then the burden of proof is not discharged (tribunal decided 3 months broke the link)
the length of that period will vary from tribunal to tribunal.

In CSIB/69/03 the Commissioner decides that the mdecial examination is so defective that it cannot form the basis of a supersession
under 6(2)g. This a post tribunal commissioners case but the Commissioner does not remit it to a tribunal to correct. In other words a tribunal cannot correct defects that render a medical wholly invalid.

It must be remembered that at para 192(2) the tribunal of Commissioners say

"there may be some such decisions which have so little coherence or connection to legal powers that they do not amount to decisions
under s.9.or s.10 at all"

In CSIS 833/02 where a claimants entitlement to IS was ended
because they had too much capital Commissioner Parker said
"While it may be apparent from this that the DM intended to end a present entitlement on grounds of excess capital given the various ways this could have been approached (which differ according to the facts found) the decision does not even attempt a legal explanation
of the alteration, from when and on what basis. The matters involved are too complex to be dealt within such an incoherent way".......
"With reluctance, I categorise this decision as one which is beyond the pale in its total lack of expressed connection to any supposed exercise of a legal power"

She decides that the decision is invalid.

This decision was made after and with full reference to the
tribunal of commissioners decision.

One only has to look at the whole history of "review" to see
that the boundaries between invalid and valid can remain indistinct
for years. It follows that tribunals and commissioners will come to different decisions on the same facts.

I may risk sounding a bit glib here. All you have really established is that there may be arguable points against our submission. I'm not clear why that would mean we ultimately cannot succeed.

I see your point about 6(2)(g). The basis of Chris Orr's attack (if I'm not mistaken) is that 6(2)(g) can only be used to supersede a decision "where there has been an incapacity determination." And "incapacity determination" in this sense is a statutory term meaning a determination under the PCA. If the preceeding decision used an invalid schedule, then there has been no PCA and so no incapacity determination. So 6(2)(g) cannot be a ground for supersession. Also, the decision under appeal would have used the invalid schedule and so arguably is invalid on this point also.

So I'm not convinced that our submission is anything less than arguable. Thanks for trying, though. It's always good to test arguments in the lab, so to speak.

For clarification - my last posting was in reply to Martin. It appeared after Chris Orrs's posting, not sure why.

As far as I can see Martin you have virtually answered your own question....at point 3 of your posting ""Incapacity determination" is defined in Reg 7A of the D&A Regs as " in reg 24 of the SS (IFW) Regs 1995 or whether a person is to be treated as incapable of work in accordance with reg 10.... or reg 27".

The simple fact that no valid PCA has been carried out, bearing in mind (howker), then there can have been no valid determination, Certainly not one which qualifies as such under the test laid down by parliament.

Reg 6 (2) (g) therefore cannot be used as a ground for suppersession by the DM on the basis that there has been no "effective" determination. The burden of proof still lies with the DM. There has been no change in circumstances or even any new medical opinion. The PCA simply fails to be valid therefore so does any determination made on the back of it.

Well.....at least that's how I have been approaching it.

I agree with Steven that the submission is not only arguable but chris, mick et al have made clear and valid points on which to challenge all PCA's post Howker.

The fact that there is frantic discussion on the DWP's intranet and that chairs are indeed recognising the failures of the DWP in relation to this submission is testament to the validity of the arguements contained within it.

They are just that though....arguements. I don't think anyone would presume to suggest there won't be difficulties in convincing tribunals in every case throughout the country. but it could give rise to some useful case law.

Martin, the problem with your analysis is that it comes unstuck at para 5 (if not before). Tribunals can't conduct their own PCA as firstly they are not qualified to do so, secondly they cannot conduct a physical examination and thirdly any such attempt when the onus is on the DM would be a clear breach of Article 6 ECHR.The tribunal of Commissioners decision therefore has no applicability. In any event many of us think that 4751 et al is bad law (ie it's wrongly decided not just crap from a WR perspective) and that's why it was so disappointing that CPAG did not appeal it. However the case of Docherty will deal with the powers of the tribunal and is due to be heard in Jan 2005(I think). We live in hope that the Court of Session will consign 'War and Peace'to the dustbin of legal history.
Be happy.

I have a case for which this might be appropriate, specifically in sitting and lifting and carrying.

The tribunal's already decided it without consideration of the arguments presented above, however it'd be handy to put it before the Commissioner.

Beyond the discretion of the Comm' to consider these arguments at such a late stage, i'm concerened as to whether such a lowly caseworker as myself should be putting argumets down that might have such a drastic effect on the current situation and are so new...

Either way. despite nerves, and considerations as to whether more informed people might want to present this, deadlines are tight, and I'd appreciate a swift response.

One last thing, in such debates, and considering we know that tribunal chairs, the DWP (oh yes, their intranet has rung loud on this one) and probably Commissioners are watching, I'm concerned that it might not be too appropriate to debate these issues in such a public manner... We're trying to second guess ourselves, and possibly giving the baddies the upper hand... I'd be grateful if you'd email me, either through Birmingham Tribunal Unit, BTU@btinternet.com, or via my personal tag, if the tag doesn't work ring me on 0121 233 2824 and I'll be happy to provide my address although being the first day back after mi' hols I might be a bit pushed to discuss it there and then.

ttfn!

Chris-

Now CSIB/69/2003 is a decision that I like!

It seems to me in that decision that Comm. after dissecting the responses by the Approved Doctor on the IB85 and finding them woefully inadequate in terms of a justification for the descriptors chosen then goes on to decide:

"36. I regret that the above reservations make me unable to accept the overall accuracy of the medical adviser’s report to a degree such that I can conclude that it is sufficiently reliable in the circumstances of this case to demonstrate that the Secretary of State has discharged the onus of proof to show that regulation 28 no longer applies."

Hi, I've only just discovered the above "PCA's are invalid" arguments, which I'm eager to try at forthcoming UATs. Thanks for all the info!

However, I'm unsure of a couple of points that have been raised, especially as mentioned in the two example written sub's.

Firstly, the argument would seem to work because we argue that without any regard for the Howker, et al, reasoning, a s6(2)(g) supersession has not been done (there not having been a proper PCA), and a UAT cannot do one. Why is it a tribunal cannot do a PCA and what piece of legislation/caselaw is authority for this? Is that not what happens in practice when we appeal ICB UATs? It may not, cannot, involve a physical examination, but in practice the UAT decision making process looks at all evidence available to them and determines which descriptors apply arising from the physical and mental activities as set out under legislation. Is that not a PCA or am I missing something fundamental (which really I should know about)?

Secondly, and I'm not sure if this is the same concern as above, what is it that is being argued under Article 6 ECHR? I understand that the article protects a right to a fair hearing, but (& perhaps I haven't looked at it closely enough, or more likely understood it well enough!) where does it say a tribunal cannot adjourn for a proper PCA to be done?

I am also aware of the last few replies' concerns that Chairs, DWP may view this site and its all gone quite since the last post at the begining of the month. Is this argument still running and what success are people getting with it?

I've got quite a few PCA UATs coming up in August, so I'd be grateful for a reponse to set me straight! Thanks!!

To summarise

S171C states that " the question whether the person is capable or incapable of work shall be determined in accordance with a personal capability assessment" invalid schedule therefore no pca therefore no determination.

Following R(SB)7/91 for example no determination tribunal has no power
other than to say that they have no jurisdiction.

Does the tribunal of Commissioners on revision and supersession deal with this. We say no because the subject matter is too far removed from the question they were considering. It is a much more fundamental flaw but remember the tribunal of Commissioners at para 192 did allow that there may be cases where there is so little connection to legal powers that a decision could be declared invalid.

I attach a post tribunal of Commissioners example below.

There are practical reasons why a tribunal could choose not to do
the work themselves even if they think they could.

If a tribunal decided that there was no determination but that they could do it themselves what would be the date of the determination,
would they have to deal with everything down to the date of the determination.

They would have great difficulty in using any previous evidence
as of course it would have been gathered asking the wrong questions
both in the forms filled in by the claimant and at the medical examination. It could take them a lot of time especially as they would have to ask the claimant how they were x months ago and explain to the claimant the subtle and not so subtle differences between the questions they are asking now and the questions they are asking on the day of the hearing.

A claimant might reasonably say how on earth can I answer these questions. How in this situation can there be a fair hearing. A tribunal could say "burden of proof not discharged" even if they
were unwilling to say totally invalid.

The tribunal can't adjourn for a "proper PCA" to be done. A PCA is not the medical examination the PCA is the decision by the decision maker. If they do that then they have admitted that the decision is invalid.

They could adjourn for a medical to be done using the right questions
but given the the BAMS doctors are all trained in the wrong questions that would seem pointless.

What has been happening at the tribunals?

Some were adjourned to allow the department to make a response.

We now have some of these responses and they are all the same.

I quote

"I submit that the decision maker quite clearly carried out the Personal Capability Assessment and while there may be an error of law because the wrong wording was used this does not mean that the whole process is "invalid".

Neither the "Howker" judgement nor the decision in CIB/0884/2003 found the amending SI to be ultra vires. They specifically dealt with only the amendments that were relevant to the cases before them and that it was for other tribunals to decide the issue of other amended descriptors applying the same reasoning following "Howker" as to whether the amendment has had an adverse effect for claimants.

submit that the tribunal has to decide whether the description of the potential effect of the amendment to Activity 3 of the Schedule as neutral was an accurate description of its effect. If it is not and its effect is potentially adverse to claimants it is covered by the reasoning i "Howker". I further submit if the tribunal does decide that the amendments to the 1995 regulations made by SI
1996/3207 are ultra vires the verson of any particular activity reverts back to the 1995 version"

Apart from causing one to wonder what reverting forward would be
they are saying nothing about the totally invalid submission (this submission wasn't put to the Court in Howker or to Commissioner Jacobs) and in respect of the descriptor by descriptor submission
they agree.

Tribunals locally are
a) awarding points and thus avoiding the whole thing
b) where they are dealing with the Howker points for new descriptors are agreeing and then applying the 95 descriptors.
c) I have one case where we were successful on the totally invalid submission and that is being appealed to the Commissioner by the S. of State and one where we lost where we are appealing.

If tribunal members are reading this perhaps one might ask them what they are doing about paper hearings. Surely all paper hearings would have to be adjourned to allow the claiamnt to produce evidence in relation to the descriptors as we now know them to be.


The commissioners decision follows




SOCIAL SECURITY ACT 1998

CHILD SUPPORT, PENSIONS AND SOCIAL SECURITY ACT 2000

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER: D J MAY QC



Oral Hearing



Appellant: Respondent


Tribunal: Glasgow Tribunal Case No: U/05/895/2001/00951

DECISION OF SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the appeal tribunal given at Glasgow on 11 March 2003 is erroneous upon a point of law. I set it aside. I make the decision I see fit. It is that the decisions of the local authority of 21 July 2000 and 13 October 2000 are of no force and effect. They are incompetent. The matter is remitted to the local authority for a decision afresh.

2. This appeal came before me at an oral hearing on 13 July 2004. The claimant, who is the appellant, was represented by Mr Orr a welfare rights officer of the City of Glasgow Council. The respondent, the City of Glasgow Council were represented by Mr Sutherland, Advocate, instructed by their solicitors.

3. The claimant in this appeal was in receipt of housing benefit on a number of awards over the period 28 April 1993 to 28 March 2000. The periods of these awards are set out on a sheet at page 123. A number of the awards overran the statutory limit for benefit contained in regulation 6(b) of the Housing Benefit (General) Regulations 1987 which relates to the benefit period. In a letter dated 21 July 2000, the claimant was sent intimation by the local authority, Glasgow City Council that after consideration housing benefit will no longer be paid and that all monies paid to her would be recovered in full. It was also said in the letter:-

“Accordingly I have instructed our overpayments section to recover all the benefit paid between 28 April 1993 and 28 March 2000.”

The claimant was told that the Department would be in touch with her in due course about the amount of the overpayment. She was informed of her statutory right under the scheme in operation at the time for an internal review of the determination which had been made by the respondent, under regulation 79(2) of the Housing Benefit (General) Regulations 1987. It is not disputed that the claimant took that opportunity and her application is dated 24 July 2000. It is to be found at page 70. On 28 July 2000 the claimant was informed by the respondent that the extent of the overpayment was £29,998.74 for the period from 28 April 1993 to 28 March 2000.

4. On 13 October 2000 the claimant had intimation of the internal review that had taken place under regulation 79(2). The result of that review was the conclusion:-

“….Had the correct facts been made known when you first applied for benefit, no benefit would ever have been paid. You have therefore, been overpaid Housing Benefit you had no entitlement to for the period 28th April 1993 to 28th March 2000 totalling £29,998.74. This is considered recoverable and within the Regulations is recoverable from you.”

The claimant was informed of her right to seek a further review of the determination within four weeks of the date on which the determination on those representations was sent to her under regulation 81 of Housing Benefit (General) Regulations 1987.

5. The claimant took the opportunity by letter of 26 October 2000 which is recorded at page 76. Mr Sutherland accepted that this letter was an application under regulation 81. That review did not happen by virtue of a new statutory scheme. By virtue of regulation 3(1) of Housing Benefit and Council Tax Benefit (Decisions and Appeals)(Transitional and Savings) Regulations 2001, the application was treated as an application duly made on appeal to an appeal tribunal from a relevant decision.

6. The appeal came before a tribunal on 11 March 2002. The claimant’s appeal was unsuccessful and a recoverable overpayment of £29,998.74 for the period 28 April 1993 to 28 March 2000 was found to have arisen. There were a number of grounds for appeal against the decision of the tribunal. On one issue the parties were agreed that there was an error in law on the part of the tribunal and that was that in purporting (at pages 278 and 279) to have carried out a correction of the decision superseding the original awards, the tribunal erred in law by virtue of the fact that at the material time the statutory provisions for supersession were not in operation and accordingly even if a correction had been competent in respect of the awarding decisions, the wrong basis for doing so had been carried out. I accept that concession and on these grounds alone the decision of the tribunal requires to be set aside.

7. I should perhaps add that in my view the tribunal also erred in law in determining that the appeal is against the determination recorded at page 73 dated 13 October 2000 as opposed to that on page 68 which is dated 21 July 2000. That follows from my interpretation of regulation 81 of the Housing Benefit (General) Regulations 1987 in force at the time. That provides:-

“81.–(1) A person who has made representations under regulation 79(2) (review of determinations) may give or send to the appropriate authority written notice requesting a further review of the determination within 4 weeks of the date on which the determination on those representations was sent to him.”

In my view “a further review of the determination” refers to the original determination and not to the internal review carried out. The latter determination is as referred to in the statutory provision as “the determination on those representations”. Despite Mr Sutherland’s submissions to the contrary I am satisfied that the two determinations referred to therein are different determinations. If they had not been it would not have been necessary to use the word “further” in the statutory provisions. In the event, having adopted the course I have, I consider that the matter is of no moment as both determinations were incompetent because the second one flowed from the first one and accordingly for the proper disposal of the appeal they both require to be found to be incompetent.

8. In relation to the disposal of the appeal, Mr Sutherland submitted that I should make the decision that the tribunal ought to have made and that was in effect on pages 278 and 279 substitute review as opposed to supersession or revision. In support of the ability to correct decisions I was referred to a decision of a Tribunal of Commissioners in CIB/4751/2002. That decision was directly related to decisions under sections 9 and 10 of the Social Security Act 1998 and not to the scheme under the housing benefit legislation in force at the time. Mr Orr on the other hand submitted that even if the decision of the Tribunal of Commissioners was regarded as being analogous and could be applied to the instant case paragraph 72 of the decision, recorded at page 337, made reference to decisions which have so little coherence or connect to legal powers that they do not amount to decisions under section 10 of the Act at all. In this case the decision of 21 July 2000 and indeed the decision of 13 October 2000 seem to me to have insufficient coherence to allow for correction even if that were possible. As Mr Orr pointed out, what required to happen to the awarding decisions before the provisions for recoverability of benefit under regulation 98 of the Housing Benefit (General) Regulations 1987 arose was their revisal upon a review. He also pointed out that such a review had to be applied in the context of regulation 79(1) and account required to be taken of the fact that the benefit period contained in regulation 66 on a number of occasions had overrun. Mr Sutherland said that all the overpayments related back to an initial fraudulent claim on the part of the claimant. However these issues were simply not addressed in the determinations at pages 68 and 73 and Mr Sutherland conceded that there was an absence of identification of the basis for review under the relevant statutory provisions. In the circumstances I have taken the course I have. I underline in doing so the comments I myself made in paragraphs 9 and 10 CSHC/343/03. Mr Orr also referred me to what was said by Mr Commissioner Reith QC in RSB/7/91 recorded at page 88 of the papers where he accepted where the decision was invalid and of no force and effect, then it will be open for a decision to be taken regarding whether overpayment proceedings should commence afresh. Mr Orr readily conceded that the respondents were entitled to do so and suggested that the matter was remitted back to the local authority to start again. That is what I propose to do and my decision is reflected in paragraph of this decision.

9. The appeal succeeds.










(Signed)
D J MAY QC
Commissioner
Date: 15 July 2004

Paul,
As you rightly say a PCA involves a physical examination and a tribunal cannot conduct one. Why go any further than this when you don't need to?
Tribunals though inquisitorial in function weigh the evidence provided by the parties and make a decision accordingly - constructing evidence which may assist a party who would otherwise fail to prove their case is a clear breach of the rules of natural justice and Article 6 ECHR. The same argument applies to adjournments for a 'proper' PCA to be carried out. If the DWP seek to revoke an existing award the onus of proof is upon them, not the claimant (R(S)3/90) so if they come to the tribunal with a case that is too weak to discharge that onus why, unless there are exceptional circumstances, should they be allowed an adjournment? A claimant would not be and the 'dodgy' PCA is not exceptional, they are all 'dodgy'! Also there would be no point as unless the IB50/85 are revised to the pre amendments version the same defective evidence would be produced. And if the client's condition had changed in any way since the decision S12(8)(b)would act to prevent the tribunal from taking a new PCA into account. Even if it hadn't it could be argued that the new PCA was, in itself, a circumstance not obtaining at the date the decision appealed against was made.
Finally in social security law (unlike criminal law) almost all of the legislation is permissive rather than prohibitive so the answer to any chairman (and I've come across one or two) who seeks to intimidate a rep by challenging them to identify the legislation that sops them from taking a particular course of action is to ask them to identify and record the authority that permits them.
Out of about 20 IB appeals heard since we have ran this argument two have been lost and we await statements. The others were all allowed on the facts but we strongly suspect that the Howker argument exerted a powerful 'lever'.

Good luck
Mick

Mick-

As pointed out in Chris's last post and as argued elsewhere in the thread a "PCA" is NOT the examination by an Approved Doctor. A PCA is the DM sitting down and considering the schedule and the evidence from the Doctor in coming to a conclusion on how to score the appellant.

Martin

The above has been a great help!! Feel much more focused now! Thanks for the reponses!

The question that needs to be considered Martin is without a IB50 and IB85 would there be a PCA?

Paul, the ECHR is used to argue that the tribunal cannot adjourn for a new PCA, given that the burden of proof has not been discharged by the decision maker if the tribunal accept that the original PCA is invalid in it's structure. Any adjournment granted to the secretary of state to do another PCA would effectively mean the client not having a fair hearing.

It would be like saying to the decision maker.....do what you like to turn someone off of benefit and if you don't do it right well that's ok....we'll give you another chance.

The tribunal have no real grounds to allow this to happen, it is for the decision maker to do it right first time of asking.

hope this helps

Stephen

Thanks Stephen, things looking clearer now!

We took this arguement to an Incap appeal this morning - the Chairman, having considered our submission said that he did not accept that the 96 amendments in total were fatally flawed, even though we pointed out, and he recognised that the IB50 and IB85 use the wording inserted by that change. In explaining the arguement to the client, he did concede (I think!) that the effect of the amendments on some of the descriptors was to tighten up the qualification, and that the Select committee had possibly been misinformed about this.

This was an appeal where the client already had 14 points, so we were expecting them to find the extra 3 from a choice we gave them, but in five minutes of questioning, they discovered that he had had a undiagnosed 1st stroke not long before the medical examination, and although he had told the EMP, there was hardly any mention on the report. (He has had a second stroke since then, with the same symptoms which were recognised on that occasion).

Outcome was that they exempted him on grounds of undiagnosed life threatening condition !

Have had 3 "PCAs are invalid" UATs this week.

One lost and we are awaiting FWRs.

One was adjourned to a double slot to discuss the argument in more detail and let DWP reply. That's set for Sept so hopefully will have some DWP reply by then.

One we won - on merits. The whole "PCAs are invalid" argument, although listened to and debated, was rejected. Chair mentioned it was stretching the concept in Howker to say whole test invalid and that UATs can correct decisions anyway. She then began to ask cl about his sitting (using pre-amendment test). I submitted she couldn't do this becuase it would be an attempt to apply the PCA and that our argument was the DWP had not done a proper supersession and so a UAT doing this was doing the DWP's job for them and so was an unfair hearing. This also rejected.

Still, plenty more to try in the next few weeks...

Does CIB/0844/2003 actually harm our case? At para 15 Cmmr Jacobs states that "The tribunal's approach to that provision was in accordance with the original version. It did not deal with the Howker issue, which was not raised before it, or with the issue of the interpretation of the amended version. So, it may have stumbled on the correct approach rather than reached it by analysis of the issues".

Its the last sentence above that causes me problems - the Cmmr is saying the correct approach for a tribunal is to apply the original version of the Regs - it doesn't say the correct approach is that the test is invalid. OK so the Howker issue was not rasied in that tribunal but surely the Cmmr is saying in the last sentence "even if Howker had been raised and analysis of that issue was done, the correct approach is to apply the pre-amended version, which the UAT did and can do".

I can't convince UATs of anything further than that I'm afraid...

About Paul's posting of 10/8/04. I see your point, i.e. Mr Jacobs does not appear to think that the correct approach would be to rule the decision invalid. However this does not strictly matter as a point of case law. Unless I'm mistaken, the invalid decision argument, in the terms we now frame it, was not put to Commissioner Jacobs in that appeal. As far as I can see, the Commissioner was ruling on whether it was competent to chose the pre-amended version as opposed to the post amended version. And in that case the tribunal's findings were consistent with the pre-amended version. So, even if we do think Mr Jacobs's view is against technical invalidity, this would be obiter, as the point was not at issue in the appeal.

What's authoritative is the decision of the Commissioner on the points at issue in the appeal to him. Anything else is not binding. In any event, as we know, Commissioners' views on matters of technical validity are subject to some variation.

The best we can do is argue the point convincingly (which shouldn't be hard, if we believe in the argument). This does not guarantee tribunals will accept it. However the more arguments made at tribunal, the better the chance of an arguable point of appeal if the tribunal decides against the claimant.

(sorry guys can't help stirring this one)


Just a thought-
given the DWP seem to be coming out with guidance in drips and drabs about each amendment held to be ultra vires does anyone think this argument (which as stated earlier I am sceptical about) will fail on its own terms when it gets to the stage that the DMG instructs decision makers to apply each of the correct versions: at this stage then surely the DM has the correct schedule in his mind when he makes the decision?

Reg 6(2)(g) says that a decision may be superseded where it is an incapacity decision "where there has been a personal capability assessment." Remember, it's the previous decision that has to fall within 6(2)(g) before it can be superseded. I would guess the vast majority of assessments to date used the invalid terms and so they don't constitute a decision "where there has been a personal capability assessment" in the statutory sense. Even if the decision maker had used the "correct" terms, then arguably this is not a PCA, as PCA is defined as an assessment under the schedule, which is invalid. So a decision purporting to supersede under 6(2)(g) is invalid.

In any event, why are we speculating about whether of not an argument "will fail"? Defeat or victory is in the hands of the tribunals and the Commissioners. In the meantime, we make arguments because they are arguable, I'm guessing.

Do you think there is such a thing as an absolutely "right" argument? Are you perhaps falling foul of the myth of the "correct" decision. Until there is an authoritative decision, all we have is argument. Let's make the best of it!

Can't it be done on 6(2)(a)(i) (change of circs being that a PCA has taken place now....) in such a case? This is what the comms seem to say a first decision on a PCA is anyway....

It is difficult for the DWP to prove that the obtaining of a new medical report shows a relevant change of circumstances. It does not constitute a relevant change by itself (R(S)2/86 if I'm not mistaken). As long as the claimant says "My condition has not improved," then there is rarely anything in an EMO report to indicate a significant change in the condition since last assessment. What we then have is two differing medical opinions, at best for the DWP. Or, as is often the case, the previous report is not available. In either case the burden of proof cannot be discharged.

The DWP themselves admitted this difficulty and tried to address it by bringing in 6(2)(g).

In reply to Steven's posting....

Have you had any refused tribunal decisions using this argument, that you have challenged further?

Has anyone?

I ask because I'm not getting much success (any?!) in arguing the test is invalid as a whole. Some of these tribunals have then been successful, but not all and not on the basis the test is invalid.

I'm now in the position of applying for leave to appeal on one case, and all I've got is what is posted on this site. As very useful as that is, I've got a feeling my case may be the begining of getting an authoritative decision - that supports the counter argument that all PCAs are not invalid. Understandably, I'd feel kind of responsible then.... I can't be the only one in this position?

Chairs are saying to me that in Howker and the other CIB CDs the invalid PCA argument was raised and was rejected. Yet that does not appear in the CDs I've read.

I've heard other reps talk about tribunals not having the jurisdiction to deal with the case because the PCA is invalid.

Can anyone help me? Is anyone further along with an appeal to the Commissioners. I'm willing to take the case to the Commissioners but I feel the argument is a bit bare without supporting cases, from Welfare Benefits or other legal spheres. Obviously I realise this may be a new issue for the Commissioners to consider and so there may be nothing more than what is mentioned on this site and our own ways of putting the argument.....

Strangely, we've not had many IB appeal hearings since I first posted on this thread on 24th June. I don't have precise figures, but there's maybe been about 4. Only one has been refused. The tribunal (with a very experienced full time Chairman) rejected the invalid decision argument but accepted that all the descriptors should be applied in pre-amendment form. Then the tribunal heard the appeal on the merits, and didn't award sufficient points. We await a full statement of reasons. As we used the technical argument it's likely we'll find at least one arguable point of law that we wouldn't otherwise have had.

The others were allowed on the merits, with one exeption: in that case the tribunal adjourned for a submission from the DWP in response to our argument.

My belief in the value of the argument has not changed.

Perhaps that might be the case - but notwithstanding what may or may not be in the mind of the decision maker does not get away from the fact that the Client questionaire and the EMP report still use the wording on some of the descriptors which appears in the newer version of the Regs: instead of waiting for Commissioners to dismantle the whole mess descriptor by descriptor I cannot see why the DWP just didn't admit defeat and resort in one fell swoop to the original regs for the time being, and then sort it out.

This really is no way to run a seamless joined and transparent sytem of benefits - if we can't figure it out, what chance does the mere claimant have ...........................

The wrong questions on the IB50 and the IB85 simply have the effect that the DM (with the right wording in his/her mind) has to consider this when weighing its value as evidence as part of conducting the PCA. At appeal a Tribunal has to do the same.

See my postings above.

I have a case where we lost but leave to appeal has been granted by the chair. Papers went to the Commissioner last week. If anyone wants sight of the submissions contact me or post your contact details here and I'll send the stuff on.

Chris

I'd love a copy please.

E-mail: - p.neville@social.services.sefton.gov.uk

Or post: - Paul Neville, Sefton WRAS, 7th floor, Merton House, Stanley Road, Bootle, Merseyside. L20 3UU

Thanks.
Paul

Can someone post up the (old) reg 27 (incap for work)regs please?

Thanks

Hi Emma, here it is:

Exceptional circumstances
27. A person who does not satisfy the all work test shall be treated as incapable of work if in the opinion of a doctor approved by the Secretary of State—

(a) he suffers from a previously undiagnosed potentially life-threatening condition; or

(b) he suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work; or

(c) he suffers from a severe uncontrolled or uncontrollable disease; or

(d) he will, within three months of the date on which the doctor so approved examines him, have a major surgical operation or other major therapeutic procedure.

Forgot to add:

Remove the words "in the opinion of a doctor approved by the Secretary of State" due to the effect of ex p Moule if you want the current good law version.

Exceptional circumstances
27. A person who does not satisfy the all work test shall be treated as incapable of work if in the opinion of a doctor approved by the Secretary of State—
(a) he suffers from a previously undiagnosed potentially life-threatening condition; or
(b) he suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work; or
(c) he suffers from a severe uncontrolled or uncontrollable disease; or
(d) he will, within three months of the date on which the doctor so approved examines him, have a major surgical operation or other major therapeutic procedure.

The above is the original 95 version SI 1995/311

it was amended by SI 1996/3207, 1999/3109 and 2000/590

all available on HMSO site.

Thanks to you both

I'd love a copy Chris!

Please send to: Paul Walton, Newcastle CAB, 35 Nelson Street, Newcastle, NE1 5AN.

Thanks

hi chris -

if you wanted to send a copy to us here, we'd be happy to publish - save you having to send to people individually?

cheers - shawn

Yes please.

Martin your scepticism is again misplaced. How could the DMs'possibly correct the errors that arise from the application of the incorrectly worded IB50 and IB85?

Keep up the spoonwork.

Mick

Just come back from a Tribunal where I tried the argument. The chair rejected it out of hand relying on the "we have an inquisitorial role and can correct the supersession following CIB4751/2002" line

The Tribunal then went on to take the easy route and awarded more than 10 points on the mental descriptors so I got my result.

(As far as I could tell, the unamended descriptors were used)

Thu 10-Feb-05 08:34 AM by ken

So are you all now appealing CSIB/598/2004 to the court of session or what?

Or what.........

It's a matter for Chris and his client. I hope he does and I'm sure he will if his client wishes to and an appeal can be funded. The PCA is grounded in a medical assessment and when that assessment produces a result which is fundamentally flawed because it asks the wrong questions of the claimant and directs the doctor's mind to the wrong descriptors how can a non medically trained person possibly correct it? And what is it that makes the DM's 'corrected'PCA any more valid than the claimant's own 'correction' in respect of what he can or cannot do?
This is the problem with Commissioner Parker's approach. The Advocate (para 30) quotes the infamous R(IB)2/04 ans she sees it as the key to the solution.

"The appeal tribunal in effect stand in the shoes of the decision maker for the purposes of making a decision on the claim"

Yes but as the DM can't conduct a medical assessment for the reasons above neither can the tribunal. The Commissioners seem caught on the horns of a dilemma. They worry about their future and see maintaining their caseload as an important justification of their function. But at the same time recognise that rocking the 'reform agenda' is probably not in their best interests. So we end up with decisions that seem to be grounded more in political pragmatism rather than the incisive legal analysis of which these learned characters are undoubtably capable. Start at the 1998 Act which empowers only the Secretary of State to revise or superceed, blow it away with R(IB)2/04 but face the hurdle of an unarguable case against the application of an invalid PCA. No problem - empower DM's and tribunals to conduct a medical assessment!

Lets hear it for the myth of judicial independance.

Yeah Mick I guess you heard the edge on my 'what' there.

This thread has had 69 replies and over 7500 views. It has given welfare rights advisers an argument they can potentially take to any PCA appeal they are handling. PCA appeals are second on my list after DLA. That's a lot of appeals, potentially.

I just think that if you're presenting something like that it would be nice if you kept the troops up to date with the current legal situation, is all.

As much as I don't like R(IB) 2/04, in this particular situation it actually does a job over a compromised legislature.

All of this stuff ultimately stems from ex parte Moule, doesn't it? (Please correct me if I'm wrong) Which took the decision AWAY from Doctors for Reg 27 and put it in the hands of what were then AOs. (It would maybe be a bit much to blame the whole of the SSA 1998 and the move to DMs on poor old Moule, but it seems clear that decision annoyed the DWP plenty. Maybe they were still smarting from the change from DMPs for AA boards going with the onset of DLA, and all the shenanigans that ensued from that.)

Which is ultimately surely where the decision should lie? I think you'd disagree which is fine and the point of an interesting philosophical debate, but ultimately that's where the law is. The reality is that any non-medical person will rely on a doctor for advice. I spoke to a PCA appeals officer yesterday and said: "Yes but ultimately it's your decision." She said "Yes Andrew but I am not a doctor and it's a medical matter." So practically she asks Med Servs for an opinion and then follows it. I don't blame her: she can't have a debate with a piece of paper on which there is an opinion based on pieces of paper five steps removed from the actual punter whose livelihood is at stake in the first place.

Which is why I agree with the application of R(IB) 2/04 in this particular case. The tribunal is expert legally and medically so can contrast the legal changes and their medical impact and truly have that debate between legal and medical, but most importantly with the client there in person, and they can properly be in the shoes of the DM. I can say that the Med Servs opinion is just that and needs to be weighed with everything else. Without Moule that opinion would surely be afforded greater weight (if not be actually binding????).

My concern with this argument has always been that like Gillies it can get in the way of an adviser preparing and/or presenting a strong substantive case. The difference is that with Gillies the problem was with a member of the tribunal, probably the single most influential member. You objected to them at your peril, but if they got in the way and were biased it would have been awful. So it was justified - but at the price of thousands of appeals delayed for how long for what? With the argument in this thread, the threat is from the legislation itself, which sounds worse but in the end it is correctable by a properly informed tribunal applying the law correctly. And any tribunal which fails to do that is open to appeal from the Commissioners.

Ultimately all of the amendments will either go back to SSAC and get rubber-stamped or they'll just wait and change the lot to something far more draconian anyway, because that's the way the political wind blows in this regard.

But in the meanwhile I'm afraid I have never used this argument nor would I unless I had an absolutely hopeless substantive case (and I mean not arguable at all on the facts) where you may as well have a philosophical debate on the subject just to get the poor client nearer the 6 months to reapply.

In reply to Andrew's message, 17 Feb 04: You make both arguments - if the tribunal accepts the substantive case, they can allow and there's no delay. If not, then the "delayed" case is all the case there is. How does that approach "get in the way"?

Where do you get the idea that one argument prevents others being addressed by the tribunal?

Hi Steven - I'm not even necessarily talking about the tribunal I'm talking about me.

I have limited (very) mental resources, let alone legal aid ones. In preparing and presenting cases there is only so much I can really get out onto paper or into my mouth. And it's a natural thing to prioritise arguments.

The one time I raised Gillies it stopped the tribunal dead (there were loads of people observing too, and on hindsight it was very funny but at the time I just wanted the ground to open up really) and really impacted on my presentation of the substantive case I had. I just wilted basically and I know I'd do the same with one of these.

I've also not really followed the logic of Howker + R(IB) 3/04 = EVERY PCA invalid. If I can't follow it how can I get it across to a tribunal?

As I say, let alone the tribunal members themselves.

I wonder how this chimes back to Mike Shermer's (I think it was Mike) thread on commonsense versus legalistic appeals. I wonder if there is a sliding scale where we all sit at some point, ready to condemn a 'commonsense' approach as limited and disempowering, but beyond which ready to condemn a 'legalistic' approach as demeaning and drawing away from a client's voice being heard. I guess I've found my point.

I see the difficulty you're raising. I find a standard approach can help. If the argument is standard, you can submit a one-size written submission as a preliminary point, in advance of the oral hearing. The tribunal either accepts it or rejects it, as the case may be, and usually goes on to consider the merits in any event.

If you don't want to be drawn into debate on the technical point, you can rely on that old presenting officer's addage "nothing to add to the written submission."

Fine in theory but you never know what they're gonna do, and the suspense can be killing!

If you go in and effectively say "My client should get IB because he's sick", or you say "My client should get IB because the law is all wrong." which sounds louder if you say both?

Dare I say ... don't let them grind you down! They'e only human. In any case, I guess the technical part of this argument has served its purpose, since the Commissioner has now dispensed with it. There might be a further appeal, I don't know.

A further point ... the PCA itself is hardly a creature of substance when it comes to "incapacity for work." It's a complicated points-scoring system bearing no relation to the apparent question at issue, i.e. capacity for work. It's a misconception to think the rules of entitlement can be boiled down to the "merits," and that these are guaranteed to be more straightforward than a technicazl argument.

If you just don't like arguing legal points, bear in mind there are others who do, and I would guess many of them do it effectively.

I'm glad this topic has been re-opened! Mick, you asked me to keep you updated on the case I was pursuing last June. Well it was re-listed for August, and the appeal was disallowed. The statement of reasons made no reference at all to my 'ultra vires' arguements! The Commissioner has granted leave to appeal. I've just received the Secretary of State's observations which included a copy of CSIB/598/04. If Chris is out there, are you taking this any further?

It is interesting to note that the Commissioner granted leave to appeal one month after the decision on CSIB/598/04. (Although my case primarily focused on the amendments to the lifting and carrying descriptor). How are others getting on with Commissioners appeals on this issue?

I do like arguing legal points, I just don't like this one!

I can just about recall that this thread started with a colleague of mine sharing a new line of defence for those unfortunate enough to have lost their entitlement to Incapacity Benefit following a PCA.

It was an argument that clearly had legs enough to provoke a reasonable amount of debate, although the latest information is that it has been rejected by a Commissioner- not necessarily the end of the line, regardless of whether Chris in conjunction with his client take it further. It may be the end of the line, but then again it may just be the start of a whole new ‘adventure’. Case law, thankfully, evolves.

However, moving away from the actual substance of the argument itself, we seem (yet again!) to have got into the hoary old chestnuts of ‘commonsense vs. legalistic approach’, or ‘merits vs. technicalities’. I for one have never seen those terms as anything other than diversions from the real task of tribunal representation: the winning of the appeal.

If we must have such terminology, I prefer to see them as comfortable bedfellows than polar opposites, or more accurately the same thing. What differentiates between the representative who tries to argue that his client cannot lift and carry within the meaning of the descriptor, than the representative who puts forward the ‘Howker’ argument made by Mick and others? I have to confess that I get slightly worried when I hear of representatives elevating one ‘approach’ above the other.

I also worry when I hear concerns voiced about how the tribunal will react to certain arguments, usually those described as ‘technical’. Tribunals are there to adjudicate. I don’t suppose it really matters to them whether someone is putting forward an argument about how far an appellant can walk, or that the whole adjudication system (or whatever) is ultra vires. Incidentally, I never hear tales of Presenting Officers worrying about using overly ‘technical’ arguments and upsetting tribunals as a result. I also doubt whether Tribunal chairs in their day jobs, or in their previous legal incarnation, have or had such worries.

I also never had a problem with a tribunal for using such arguments. I suppose sometimes it was bothersome – perhaps on a Friday afternoon- for them to be exposed to some seemingly arcane argument about Incapacity Credits, but most Chairs listened to the arguments and made their decisions, just as they would have if it had been about the appropriateness of the length of time of the PCA- is that a ‘commonsense’ or ‘legalistic’ argument?

Mick and co should be encouraged for trying- as they surely must- to find new ways to win appeals for clients. I’d rather be the sort of rep who gets told that my argument is rubbish than the kind who remains silent for fear of the consequences. Without people like Mick we wouldn’t have had a ‘Mallinson’ or ‘Howker’ .

Thanks Scott, that was a real shot in the arm! Needless to say, I couldn't agree more.

I have never really understood what the difference is between a 'technical' argument as opposed to any other kind of argument. Surely our role as representatives is to advance all the arguments we are aware of on behalf of the claimant. It is the Tribunals job, and then the Commissioners, to judge the merits of the arguments, not ours.

Right on Jim. And I think we need to remember that its better to fight and lose than not to fight at all........