Hello All,

Ooh, I am hopping mad!! Went to tribunal with a client last month - ESA - and client won appeal and was placed in the WRA group. Client has bi-polar disorder and has been extremely ill; condition now being managed with lots of medication and client also undergoing therapy for various underlying issues. We had excellent medical evidence from consultant psychiatrist and CPN and to be honest it was one the shortest hearings I've been to. No DWP rep was present and it was quickly obvious from the panels attitude that they were simply looking to decide which of the many descriptors we highlighted to use to get the required points. Once they had asked a couple of questions they ended the hearing and informed us before we left that they would be finding in client's favour. I went back myself a few minutes later to collect the decision.

So far, so good. Client v.pleased and relieved as she had found the whole process v.distressing which is the last thing she needed. But she has now contacted me again as the DWP have informed her they are seeking written reasons for the decision. They also told her on the phone that "the work is of a low priority and we are short staffed..."!!!

Now I know the DWP can ask for written reasons in the same way that I can (and do) but it just seems so pointless in this case. The client had excellent evidence (plus they previously had no problem awarding DLA) and frankly I was surprised she had to go to appeal in the first place and was half thinking the DWP would just award and collapse the appeal as soon as they saw her medical evidence.

Now we all know how long it can take to get hold of a statement of reasons and the DWP have already made it clear that they won't be agressively chasing this up and in the meantime my client is left hanging. She has been advised she will continue to receive her ESA at reduced rate but it's more the emotional implications than the financial ones that concern her as I can't really give her a time frame when this will be over. I just don't see what the DWP are hoping to achieve. Did the tribunal do something wrong by telling us they were going to award? The only medical evidence DWP provided was the medical report so do they feel this was not properly considered? If they have some particular issue with this case why didn't they attend the hearing??

Have to say I am starting to get a bit cynical (!) and feel like the DWP are just doing this because they can. To be fair I have seen clients come away from appeals with awards that I wasn't expecting and could understand the DWP wanting SofR's for those but not this one! Sorry for the rant but I am soooo cross. Has anyone else experienced this or have any comments/suggestions for expediting matters? Am thinking of suggesting client goes to her MP to try and get some pressure put on DWP to at least make this a priority but anything else you can think of? The whole ESA issue all just feels a bit "agenda driven" to me at the moment - this was my first successful appeal so are DWP making a policy of challenging all successful decisions or just my clients? Any thought gratefully received before I turn into (more of) a bitter conspiracy theorist.

Cheers, Sarah

I always find that writing a letter to the M.P. is the best way of ensuring expedited where this is necessary. You could also request the M.P. to ask the Department to pay your client at the level of award that is legally current, ie. the Tribunal decision. Until such a time as it is overturned or set aside that decision is the decision that stands. Therefore they should act in accordance with it and pay her the correct rate (just as they acted in accordance with the original refusal decision and didn't pay her (other than at the reduced-rate pending her appeal).

I can understand your need to rant!.

It certainly isn't a blanket policy - I don't know of any of our successful ESA appeals where they have asked for a statement of reasons.

What is a concern is whether your local office is just doing this because they are just looking for the reasons why each successful appeal is allowed, this being a relatively new benefit. Years ago, when I worked on IS appeals at DWP, a colleague on Incapacity Benefit asked for a statement of reasons for all appeals that succeeded after the introduction of the PCA. As local office staff cannot actually decide to appeal (you have to put the case to the office in Leeds who deal with Upper Tribunal cases), his actions were largely unnecessary and, after the Tribunals Service got wind of what he was doing, pressure was brought to bear on him to stop, via his line manager.

You are also right to note that implementation of tribunal decisions in general has a shockingly low priority in the "to do" list at JobcentrePlus

Everything is about targets (and I don't mean just JobcentrePlus). There is a target to reply to MP enquiries, as far as I am aware, so that it why an MP's enquiry may speed things up, although it is up to the tribunal judge as to how long s/he takes to send the statement of reasons out

Brian

Thu 19-Nov-09 01:47 PM by nevip

Not had a problem yet. I've done 5 so far, 2 revised prior to the hearing and no SOR requested for other 3. But, its early days yet and the more we win the more bolshy they may get as winning appeals is not in the Government's script.

Hi guys,

Thanks for the replies and nevip I have to say that's kind of how I'm feeling - just seems so hard on the client who has already had to go through the appeals process and of course as and when the DWP do get the statement of reasons they may not even do anything as a result so client will have been mucked about - and paid at a reduced rate if DWP can get away with it - for nothing.

Anyway, will def advise the client to get the MP involved and will request benefit to be paid at full rate; as you say Paradoxides nothing is currently being appealed and the current legal decision is that my client is entitled to ESA with the WRA.

Grrrr.............

Cheers
Sarah

Sarah

If you discover that the request for the SOR was wholly frivolous then you could request an ex-gratia payment under section 42 of The Maladministration Guide (exceptional cases). This could be compensation for any distress caused, or if they only pay the assessment phase rate pending the outcome, then compensation for loss of the use of the extra money plus interest also.

Not exactly on the point I know, but in my experience if DWP lose a R2R case they always ask for written reasons, but almost never go to the Upper Tier - I think they are using it as a learning tool. Also I heard recent that HMRC always ask for written reasons when they lose a tax credits appeal (they in some way take tribunals a lot more seriously than DWP when you actually get there, invariably fielding a PO).

Hello again,

Have just spoken to my client and she is going to contact the MP. We were discussing the fact that currently her legal entitlement is to ESA + WRA component and that we will ask for this to be paid but client is wondering what would happen if this did end up going to another appeal and her award was withdrawn. Would there be a recoverable o/p? Would say the withdrawal of her ESA seems v.unlikely but then again....

Just have to say I have no problems with DWP wanting learning tools if that is the case here but they don't seem to have thought (or perhaps just don't care) about what it means to the client. Would be less worked-up if they weren't trying to pay reduced benefit in the meantime, particualrly when the matter could take a long time to resolve.

Cheers
Sarah

am i wrong in thinking in thise case the dwp should be paying the full amount awarded by the tribunal and should do so until such time as either the tribunal service set it aside or they are awarded leave to appeal?

as far as i can see the decision you have is legally binding and so the dwp have no right in still paying at the rate THEY want to pay.

I hope i am right!

TS decision notices used to (don't know if they still do) include a warning that payment of a Tribunal award may be withheld if the Dept is considering an appeal.

The DWP has always had the power to suspend all or part of an award pending appeal against the decision of (what is now) a First Tier Tribunal, Upper Tribunal or court (regulation 16(3)(b) of the Decsions and Appeals Regulations). This includes the period when they are considering whether to apply for a statement of reasons - regulation 16(4)

Brian

thanks for that. i have never came across that before as luckily my decisions have never been challenged.

I still wish i was right.

Hi again,

Just to say thanks for all the responses and guess what - came into the office today to find a copy of the statement of reasons!! How quick is that?? And client hadn't even had a chance to write to her MP. Judge Garrard is now officially my favourite! (And I will not look a gifthorse in the mouth by wondering why the ones I request take so long to arrive...)

So now we wait to see if the DWP take any further action in the next month, but hopefully they won't as SofR looks pretty sound to me (not that I claim to be an expert) and it shows that all the evidence was considered and reasons have been given for preferring clients medical evidence over ATOS report.

Anyway, whatever happens at least we have avoided having to wait months for s of r to arrive during which time client would have been left in limbo. Have spoken to client today and she is much happier about things too so not feeling as fed up as I was this time last week!

Cheers
Sarah

ps My fave sentance in the s of r is as follows;
"Neither the Decision Maker nor the officer who requests this statement attended or were represented"......