A client with autism has just been found fit for work at an ESA tribunal(don't ask). The DWP appointed his mother to act on his behalf for benefit purposes. As he is now going to be claiming JSA, my questions are 'Which one of them should sign on?' and 'Where's the legislation for this?'

"The DWP appointed his mother to act on his behalf for benefit purposes. "

which raises the issue of whether he has capacity, if he needs an appointee -- and if he has no capacity, how can he be fit for work?

Tell that to the judge!. It's absurd I know. I'm waiting for a statement of reasons, but that doesn't help my client. It's a Catch-22. It was the JC+ that originally suggested he move from JSA to ESA. He also presents really well, which doesn't help. Oooooh well....

letter from his consultant confirming his lack of capacity?

Oh Claire, if only they had one. This is south Shropshire, the most rural part of the most rural county in England, and there's tap-all by way of support for autistic adults here. I'm relying on our ALD team, but just to support a restricted JS agreement under reg 13. My tricky issue is, notwithstanding all the pooh that has got my client where they are, is it the legal responsibilty of the appointee to sign on their offspring's behalf, and if not, what is the validity of the jobseeker's signature?

appeal to commissioner on point of law? that is, the point of law that it has to be irrational for a tribunal to decide that a person without capacity is fit for work! and then bring the other point into it in your submissions...and at least the client's GP must have a valid medical opinion about his capacity.

Rob

From para 5050 of the DWP's Agents, Appointees, Attorneys and Deputies Guide

"If an officer acting on behalf of the Secretary of State authorizes an appointee, the appointee becomes fully responsible for acting on the customer’s behalf in all the customer’s dealings with the Department.

This includes:

• Claiming benefits, including completing and signing any claim forms."

I think the bit "all the customer's dealings" is pretty conclusive and it is the appointee who should sign on (if you see what i mean).

The guide is here (Shawn can hopefully tidy the link)

http://www.dwp.gov.uk/publications/specialist%2Dguides/agents%2Dappointees%2Dattorneys/

David

On the signing on question, Reg 33(1) of The Claims and Payments Regs states that the appointee can exercise any right of the person unable to act. I must assume that this not only includes the right to make the JSA claim but the right (actually in law a requirement) to sign on in order to receive payment.

Thank you everyone, all useful stuff. Statement of reason awaited.

"On the signing on question, Reg 33(1) of The Claims and Payments Regs states that the appointee can exercise any right of the person unable to act. I must assume that this not only includes the right to make the JSA claim but the right (actually in law a requirement) to sign on in order to receive payment."

which is even madder...in the context of a person with lack of capacity!

i know some people with autism work, it depends on their level of functioning etc, but if the person is so bad as to have to have an appointee...

So to take this Kafkaesque scenario a stage further, who is it who has to satisfy JC+ the job seekers agreement is being adhered to?; who goes for job interviews?; who has to decide whether to accept a job if one is offered?; who carries out the job if one is accepted?

If the person lacks capacity it can't be him (or can it?). But it obviously can't be the appointee (or can it?)

Devil's advocate: the regulation requires that the person "for the time being unable to act", but does not specify what evidence or other procedures must be used.
Suppose that the application was made by the mother who was (like the mothers of most disabled children) understandably very protective of her son when he reached the age of 16, and the appointment was made based on her assessment of his abilities.
Supoose, as I have seen more than once, that the mother had simply not relinquished control of the pre-16 authority used for claiming DLA when the child reached 16 - the last case I saw the child was now 19 and had after successful treatment only a slight physical disability for which she qualified for lowest rate care.
Suppose, then, that the appointment is in fact no longer needed, or was erroneous?
I think what I am saying is that the mere fact that there is an appointee does not necessarily accurately reflect the mental capacity of the principal. And the use of the term "for the time being" implies that the appointment is not necessarily permanent.

true, ariadne, and i've assumed, without OP saying so, that his autistic client does lack capacity ...

Well. Client cannot manage finances (buys toy tractors rather than food), needs continual support as part of care package to be shown how to cook, and is known to local police due to nocturnal wanderings when upset. I believe the tribunal used client's ability with powered gardening tools and his odd-jobbing to negate my arguments about activities 12, 14, 17 and 21. Can't wait for SoR. As posts above show, this is an absurd situation. I don't know whether SoS dec'n on appointeeship top-trumps WCA. Case was not helped by poor 'to whom it may concern' letters from healthcare professionals, sent in before my involvement.

well i would still reckon appeal on point of law...

keep us posted!

Sat 27-Feb-10 07:42 AM by Kevin D

Edit: Just realised Claire H had made this point previously. Doh!

This assumes the appointee status was in fact made with reference to Reg 33.

On that basis, there appears to be an obvious argument.

On the one hand, the DWP is saying "you're fit for work". On the other, so long as the "appointee" status is live, the DWP is also accepting the claimant is "unable to act".

Unless and until the DWP revokes the appointee status, its position seems to be self-contradictory.

and it has to be irrational in a Wednesbury sense to think that a person without capacity can work ....

putting the appeal to one side for a second.
a new claim to esa could be made if it has (in most current cases) taken more than 6 months to get to the appeal - despite the negative decision.

they might just have better luck at the next wfhra etc and not have to sign on in the meantime.