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Mandatory Reconsiderations ESA needing to claim JSA
My understanding was that the backdating went back to the date of the original decision,at assessment rate, offset against any other means tested benefits claimed in the intervening period (ie JSA)
PAW, see posts 49 & 51 above.
PAW, see posts 49 & 51 above.
Thanks Tom - missed that.
Early Day Motion from Sheila Gilmore MP on problems of mandatory reconsideration for those who fail the WCA for ESA, etc.
http://www.parliament.uk/edm/2013-14/620
Too little, too late…..
Early Day Motion from Sheila Gilmore MP on problems of mandatory reconsideration for those who fail the WCA for ESA, etc.
http://www.parliament.uk/edm/2013-14/620
Too little, too late…..
At least contact your MP’s and ask them to sign it
New DM guidance clarifies things slightly: http://www.dwp.gov.uk/docs/m-20-13.pdf.
Example 1 makes it clear that:
- no new claim is required for ESA after an appeal is submitted to HMCTS - they can just make an assessment phase award
- when someone has claimed JSA pending MR, the JSA award is superseded and ESA paid from the date of the supersession.
However nothing on people who don’t claim JSA pending MR.
Early Day Motion from Sheila Gilmore MP on problems of mandatory reconsideration for those who fail the WCA for ESA, etc.
http://www.parliament.uk/edm/2013-14/620
Too little, too late…..
At least contact your MP’s and ask them to sign it
and send them a copy of the detailed questions at post 44 above (still no response received yet!) and ask them to raise the issue with the SSWP
and then refer every claimant who is left without money due to the inevitabe delays, JSA sanctions etc to their MP for assistance!
here’s written answer in parliament from esther mcvey yesterday -
‘John Hemming: To ask the Secretary of State for Work and Pensions if he will bring forward a legislative and regulatory reform order to remove the burden whereby people whose employment and support allowance comes to an end are required to formally claim jobseeker’s allowance (JSA) enabling the automatic provision of JSA to appropriate cases. [171970]
Esther McVey: People who are entitled to employment and support allowance (ESA) are not automatically entitled to jobseeker’s allowance (JSA) as the conditions of entitlement are different.
Where claimants are no longer entitled to ESA they are provided with full details of how to make a new claim for JSA if they so choose.
As part of making a claim for JSA, claimants are expected to attend a work focused interview in order to show that they can satisfy the labour market requirements.’
Potentially, non-payment of ESA is an extremely serious development and DWP just don’t seem to care about the consequences. It will leave many ill people without money while the DWP take the 4 -9 months they always seem to take to reconsider WCA disputes. Ministers have never liked the idea of paying ESA “unconditionally” in this situation and people have rightly highlighted a range of problems with trying to claim JSA. It is of course a vital safety net which the DWP are willing to cast away.
I have been pondering the wording of reg 5 (4) ESA Regs which enables the assessment period (and thus payment at the assessment rate) to continue after an appeal is submitted
This states: “Where a person has made and is pursuing an appeal against a decision of the Secretary of State that embodies a determination that the claimant does not have limited capability for work…”
At first glance this suggests that no ESA is payable until a notice of appeal is submitted and thus after a mandatory reconsideration has been completed and notified.
However, as far as I can see, the word “appeal” is not defined in the Regulations and there are no cross-references to the Social Security Act 1998, the Decisions and Appeals Regs or the FTT Procedure Rules all of which might provide a definition. This should have been done for the regulation to achieve DWP’s policy objective of stopping ESA while a mandatory reconsideration takes place.
The word “appeal” must therefore be given its ordinary everyday meaning.
Is it worth arguing that given the lack of definition, because people are going to have to seek a reconsideration of a decision made from 28/10/13, their “appeal” starts from when they seek a reconsideration?
By imposing mandatory reconsideration as a first step, the government has aggregated this with the formal appeals process. Certainly most people will view the two as being integrated and thus part of the whole process of an “appeal” and will talk of “appealing” when they have asked for a reconsideration (they already do).
Therefore, the ESA assessment rate should be payable from when a mandatory reconsideration is applied for (and of course a medical certificate is also supplied).
The problem is enforcing this. Failure to pay the assessment rate as envisaged by DWP would not be an outcome decision (or as far as I can see, any decision) so there is no right of appeal. The only remedy is judicial review.
What do others think?
Its an intreseting idea. Could it be argued that the reconsideration or review has always been a mandatory part of the appeals process and that the term ‘appealing against a decision etc’ has always incuded the recon and has a settled meaning in law which the new legislation has not specifically altered?
If I was working for the DWP I would argue along the following lines. S12(2) of the SSA 1998 is in the following terms:
“(2) In the case of a decision to which this section applies, the claimant and such
other person as may be prescribed shall have a right to appeal to the First-tier Tribunal,
but nothing in this subsection shall confer a right of appeal in relation to–
(a) a prescribed decision, or a prescribed determination embodied in or necessary to a decision , or
(b) where regulations under subsection (3A) so provide.”
Reg 3(4A) of the D&A Regs is in the following terms:
“3(4A) Where there is an appeal against an original decision (within the meaning
of paragraph (1)) within the time prescribed by Tribunal Procedure Rules but the
appeal has not been determined, the original decision may be revised at any time.”
Therefore, reg 3(4A) is sufficiently clear to mean that the implied duty (as opposed to a mere power) to consider whether to revise is part of the appeal process proper under s12(2) of the 1998 Act. In other words this particular power to make a s9 revision decision is subject to the actual lodging of an appeal exercisable under s12. However s12(3A) and reg 7(2) of the UC, etc D&A Regs are in the following terms:
“(3A) Regulations may provide that, in such cases or circumstances as may be
prescribed, there is a right of appeal under subsection (2) in relation to a decision only
if the Secretary of State has considered whether to revise the decision under section 9
7(2) In a case to which this regulation applies, a person has a right of appeal under section 12(2) of the 1998 Act in relation to the decision only if the Secretary of State has considered on an application whether to revise the decision under section 9 of that Act”.
What these provisions do is turn the process under reg 3(4A) upside down and make the exercise of appeal rights subject to the exercise of the right of the SoS to revise under s9. The effect of this is that there is no need for statutory definitions of the word “appeal” because it is (arguably – but it takes some getting there, believe me) reasonably clear that, when the all the provisions are read together, the word “appeal” has gained its definition from the provisions themselves in the way they operate in conjunction with each other. This interpretation might be fortified by the only statutory definition of “appeal” which is in reg 1(3) of the D&A Regs which states ““appeal” means an appeal to the First-tier Tribunal”. And, when you throw in the provision that an appeal must now be lodged directly with The Tribunals Service then the legislative intention is clear that an appeal is something quite specific and is something more than just a general plea, protestation, disagreement or request which demands that the matter be re-considered.
Edited for a minor grammatical mistake
[ Edited: 25 Oct 2013 at 03:59 pm by nevip ]
Just wondering what happens when somebody makes a late appeal after 28th October against a decision made before that date? My guess is that it would be dealt with under the old process?
Think so. DWP say that MR will affect decision notifications dated 28th Oct or after. They should be clearly flagged as such with the claimant’s appeal rights set out in the letter.
This is up for discussion and does not reflect the advice I give of will give. I am seeking a legal argument. Is a fresh claim for a further condition. If so when claimants receive a further diagnosis they should save it until they need to appeal. However, the further decision is a change of circumstance.. Those with MH problems are unlikely to understand the law and may benefit from it.
Hi - could you expand on this line of thinking?