An argument for ESA CONVERSION APPEALS

The DWP has shown a marked reluctance to challenge these decisions. After 8 appeals won on this argument, there hasn’t been a single request for a statement from a tribunal. There have been delays while the Department ‘is looking at the decision with a view to appealing against it,’ but then they just pay up.

I wonder why.

Has anyone had a conversion notice case at UT level yet? We have a couple of cases where leave to appeal has been granted and I’d be interested in what the SSWP has said in observations in other cases.

I believe that there is to be a 3-judge panel of the UT in Scotland which may consider this issue (although interestingly DWP on the specific facts seems to argue it does not arise as an issue….) - hearing scheduled for 21 and 22 January 2013.

Is it a three judge panel because of the conversion notice issue or is there some other big issue arising in that case?

As far as I know that is the issue and the reason there is a three judge panel-  ...it is not a CPAG case.

Martin Williams - 03 December 2012 01:39 PM

I believe that there is to be a 3-judge panel of the UT in Scotland which may consider this issue (although interestingly DWP on the specific facts seems to argue it does not arise as an issue….) - hearing scheduled for 21 and 22 January 2013.

Please will someone post here once they know the outcome of this case?

Hi guys

The hearing was adjourned by Judge May as the two other Judges sitting with him were unable to travel from England due to the severe weather. Has been rescheduled for 19th-20th March.

Peter

I’ve just had a client’s hearing postpone pending the outcome of the 3-judge panel.
The tribunal judge thought this decision would be available within 6 weeks.
Do these decisions happen so quickly, given that the allocated date is 19-20th March?

had a client who lost his ESA appeal hearing on 28/02/2013. Had submitted to the tribunal a submission based upon the conversion argument and health grounds.

The client had a previous hearing adjourned because the tribunal heard evidence from the appellant that he had not received “the notice”

stating “The Secretary of State is required to produce evidence that the notice of conversion from Incapacity benefit referred to as allegedly having been sent on 13.11.11 was in fact served on the Appellant. The Tribunal heard evidence today that the appellant did not receive it, and if no such evidence is produced the next Tribunal must consider reinstating hiss incapacity benefit as the conversion phase will not lawfully have started.” 

In response the DWP sent the following information:

The Secretary of State is unable to produce the specific notification letter issued, on his behalf, by Jobcentre Plus to Mr Daley on 29/09/2011 IBM01 Issued and offers the following explanation: 
Evidence of Mr Daley having been notified of the commencement of the conversion phase has been enclosed (page 171). This document – a print of screen 803 from dialogue RP001 of the PSCS system – clearly identifies that form IBM01 was issued to Mr Daley on 29/09/2011_IBM01_Issued and has been annotated accordingly on behalf of the Secretary of State.”

The second tribunal accepted that “the notice” had been sent and received but in terms of the info contained within it stated “On any view of the meaning of that regulation, therefore, that notice was “issued to” him for the purposes of that regulation.

The above is verbatum and i do not understand it - any ideas what it means? Has the tribunal ignored the submission about the validity of the “the notice” content? 

Client only scored 6 points.

I will request statement of reasons of course.

Thanks

Looks like the tribunal has done just that- considered the issue of whether the notice was sent, but not at whether the contents complied with Reg 4(3).

alex paul - 23 January 2013 10:20 AM

The hearing was adjourned by Judge May as the two other Judges sitting with him were unable to travel from England due to the severe weather. Has been rescheduled for 19th-20th March.

If anyone knows the outcome please post it here.

Update

I inherited one of these cases recently so was at the Oral Hearing

The Judges took oral submissions this week but have decided that they want further evidence from DWP about the different types of notice issued (a new notice started accompanying ESA50s from August 1012 which pays at least lip service to Reg 4.

DWP have 14 days for this and then there will be another 14 days for our side to respond. Then of course time for deliberation…

Might be a while yet, but at least snow didn’t stop play

Thanks for the update.

Just wondered if there was any news on the UT case due to be heard in Scotland on 19/20 March?

I had asked for an appeal to be stayed pending this decision but of course HMCTS have just ignored this and listed it for 23/04.

Thanks

I observed at the hearing before the 3 Juge panel of the UT on 19/3/13, having previously represented the claimant in one of the cases (White), which is an appeal by the SSWP to the UT.  Oral submissions were concluded that day. The Panel adjourned with a direction to the Secretary of State to produce specimen migration notices for the different periods at issue in the appeals, following which the claimants were to have a further 14 days in which to provide any response.  The documents were produced as directed on 2/4/2013, and I do not yet know if any response was made for the claimants.

There was a further direction in one of the 3 cases, for the claimant to lodge any submissions that he might wish to make on specific points at issue in that case only (not related to the migration issues) within 21 days.

Based on the above, I would roughly estimate that we might expect a decision of the UT soon, but probably not before early May.