An argument for ESA CONVERSION APPEALS

has anyone had any joy with this submission?

I have a client who has a partner who works, there will be no claim for income based ESA ir JSA pending the appeal.

I have now obtained a copy of what appears to be a standard DWP response to this argument and attach a copy for interest.

If anyone else has seen an alternative response it would be great if you could let me know or post it here.

I am currently working on a response and will post that when sorted- but basically I think it is worth noting that:

1) DWP seem to accept the terrain we have set out- ie that if notice not compliant decision is invalid.

2) DWP end up having to argue that the letter “read as a whole” implictly states what the conditions are. I am not really sure that is sufficient given the plain requirements set out in reg 4(3) etc.

I am aware of some advisers with First-tier Tribunal hearings coming up in the next couple of weeks where the arguments have been raised. If I find out what happens in those then I will post here.

Martin.

For what it is worth, here is my reply to what appears to be their standard response (that was attached to previous message).

I have still not heard of any definite outcomes to appeals where the issue was raised (a few people have had adjournments or await decisions). Again, I’d be grateful if anyone who has had a result could let me know.

Martin

Thanks Chris.

I am now aware of two cases where the tribunal considered this argument and a decision has been given- one tribunal found for the claimant and accepted that IB had to be reinstated and one found against.

Apparently in at least one successful tribunal case on this point the DWP have not appealed and local DM has been instructed to pay IB/IS.

I don’t think for a moment that means they accept the argument.

Some more news on this:

1. I am now aware of around 10 cases where the argument has been accepted by the tribunal- several different judges. The one case where the argument failed (on the need for prejudice point) the claimant did not appeal further.

2. In at least one case, as mentioned, the DWP have put the old benefit (IS) back into payment.

3. I am not aware of any DWP appeals against these tribunal decisions.

I have now put all of the documents from this thread in one place on the CPAG website: http://www.cpag.org.uk/content/unnoticed-flaw-esa-conversion-decisions (the documents- eg DWP notice, our first submission, DWP response to the argument, our second submission dealing with the response - are available in the top right of the page).

I continue to be interested in finding out about how cases are going- please either post here or email me at CPAG (m***williams@cpag.org.uk - remove * for correct address- added to prevent spam).

Thanks.

Martin

Is there any further updates on this point as I have finally got a migration case!

Thanks all

Used this argument for the first time a few weeks ago and won.  Judge was particularly interested in Reg4’s use of the word “must”.

The DWP used their standard submission that the requirements of Reg 4 were implicitly met by the notification letter.  However, I submitted that that wasn’t completely true when it came to Reg 4(3)(b), ie the requirement that the claimant be notifed that their IB/IS will be terminated should they not be migrated onto ESA.  The notification letter under the section: “What Happens If I am Not Entitled to ESA” actually states as follows:

“You may be entitled to JSA, IS for other reasons or PC”. 

Only one of those benefits, ie JSA, is incompatible with the continuation of IB (IB could be topped up with IS or PC) so the DWP argument is effectively that the reference to JSA alone implies that IB/IS will end.  That’s very weak in my view.

For those IS claimants undergoing conversion, then PC and JSA are obviously incompatible with the continuation of IS but it is uncleear what “IS for other reasons” in the above letter actually implies.  Could one such “other” reason to a layman be that his IS is still based on incapacity so continues despite not qualifying for ESA? 

In any event, Reg 4(3)(b) expressly requires that the Conversion Regs be mentioned as the reason for the termination of IB/IS.  The notification letter does not mention the regs at all.  When it “must”.

As many of those converted from IB to ESA will start the clock on their 365 days, Martin’s argument I think will only grow in importance as it sets the clock back where successful.

Damian has helpfully provided a copy of a reworked attempt at getting the notice requirement right by the DWP. See here: http://www.rightsnet.org.uk/forums/viewthread/3657/

Heres a funny twist. Looking to deal with the problems with the conversion notice by putting the required bits in the ESA50 covering letter. “If you currently recieve…” - does this mean all the covering letters go out like this now?

The new notices appear to go a fair way to address 4 (3) (b) by explicitely stating benefit will ‘Stop’ but is there still an argument under 4 (3) (c) as it still doesn’t appear to adequately explain the requirements that must be met to convert to ESA. Maybe the thought is that by piggy backing to the ESA50 it serves that purpose. Still leaves the claimant anxious and none the wiser about things like the the actual points that can be scored for each activity or the existance of Schedule 3. Also, as we know, the wording on the ESA50 doesn’t always accurately reflect how points are scored for activities.

Haven’t won any at LT yet with the old conversion notices but have had considerable success with both adjournments (potentially delaying loss of assessment rate) and then with using the conversion argument as leverage including getting otherwise weak appeals allowed on points or exceptional circs just so Judges can avoid complex SORs. Got a few of these through to Schedule 3 that I thought were pretty hopeless even for Schedule 2!

I can see how the new notices weaken the conversion notice argument but I’m undecided now on whether there is any mileage in bothering with submissions. Be interested to know what others think on this. Hope it’s not a case of being good while it lasted.

I really don’t want more adjournments - we’ve got enough cases to deal with without appeals that drag on for ever, especially after staff cuts. I have plenty dragging on since the DWP have all their resources in making ESA decisions and hardly any in dealing with appeals. They’re taking ages to produce responses, very rarely bothing to respond to triibunal directions (the DWP don’t seem to care about these at all in the NW and tribunals are reluctant to use any sort of effective sanctions). I also think that the argument is a sound one and not just useful for leverage in getting the points etc considered. I think the new notice shows that the DWP think so too. But if it gets a tribunal to consider the descriptors more carefully than they would other wise then thats a good thing, since most claimants would rather get a good ESA result than have the coversion decision overturned. By the time the first appeals involving the new notice come up we may well have a UT decision on the old notice, maybe even with some obiter comments about the new notice.

I attended the Tribunal this morning with an ESA conversion appeal.
Being somewhat slow on the uptake I wasn’t aware of the problems with the Conversion Notices. However, the Tribunal Chairman (who is also our Regional Judge) handed me a copy of a submission on this subject which had come from Oxford Welfare Rights, adapted from Martin Williams’ Submission. Thus of her own volition the Chairman had decided that the Conversion Notice in this case, ie decision of 18th October 2011, was invalid. This therefore invalidated the whole conversion process, and client is now back on IB(IS).

I spoke quite candidly with the Chairman, who agreed that if the Conversion Notice problem is overturned in the Upper Tribunal or above, and this affects the client, then today’s appeal would be able to be re-opened. 

Now, I realise that DWP will no doubt send client another (hopefully better!) Conversion Notice in due course, but at present, reverting to the Income Support rates, client is better off. She also seemed to think that she didn’t need to provide sick notes as often as required for ESA.

Lid26

Lid26 - 17 October 2012 12:56 PM

...the Chairman, who agreed that if the Conversion Notice problem is overturned in the Upper Tribunal or above, and this affects the client, then today’s appeal would be able to be re-opened.

Surely this would require soemone to appeal this decision to the Upper Tribunal within the prescribed time limit?

Victor