An argument for ESA CONVERSION APPEALS

I have a case stayed pending the outcome of three linked appeals before a 3 judge UT panel (listed as “3 JP”) regarding this argument.

It was I understand due to be heard in March - is anyone involved with any of these linked appeals and might be able to update me on progress

oops sorry - update - didn’t read the last post.  My case concerned a client who indicated he had never received notification at all though

A Tribunal doctor told me earlier this week that a decision is expected in July.  Can anyone involved with/ following the cases confirm if this is correct?

I was at an appeal this morning and tried to use this argument.  Panel took me in before hand and advised me decision was issued to them yesterday and the Upper Tribunal upheld all of DWPs arguments.  Panel didn’t go into it in detail.  Just said they had received it yesterday and been briefed on it.

The case numbers on the UT website are CSE/518/2012, CSE/269/2012 and CSE443/2012 - nothing came up when I just put them into the UT search thingy so they haven’t been put on their website yet - I’m not sure how quickly they go on.

Tony

Sorry they didn’t.  Couldn’t get a copy either.

A colleague spoke to a DM in ESA this morning who read from a DMG memo they had just received concerning these UT cases (they got that out quick). He told me that it included the same phrase as Anna used - all the SSWPs arguments upheld.

Hi guys

I had an appeal sisted, pending the outcome of this appeal. I have been sent a copy of the Decisions (CSE/269/12, CSE/443/12 and CSE/518/12). All have found in favour of the Sos. I have attached the decision for anyone who wants it.

Peter

So it would appear that as long as the end result is what Parliament intended i.e conversion, then it doesn’t really matter that much what wording is in the conversion notice. So much for the legal rights of the individual!

We represented the claimant (as respondent) in the second case, CSE/443/2012, where the DWP is the appellant. Jonathan Mitchell QC took over representation for the hearing before the 3 Judge panel of the UT.

It is true, the DWP position on the main points at issue was upheld.  Under Rule 44 of the UT Rules of Procedure http://www.justice.gov.uk/downloads/tribunals/general/upper-tribs-rules.pdf  there is a 3 months period within which to lodge an application to the UT for permission to appeal on a point of law to the Court of Session. This option is currently being considered.

Let us know what you decide Steven

Oh well… I think a lot of claimants won their appeals at FtT level before this decision of the UT and in quite a few of those cases I think DWP gave them their old benefit back for a while.

I am quite surprised, not at the result, but at the reasoning- I would have thought they would hold that the notices were not compliant but that this did not matter. I think the finding that the notices are compliant is quite weak- even on what the UT say needs to be included in order to make them compliant.

I attach my thoughts on that point in case they are of any use in considering further appeal- basically, I think that the SSWP reasoning rehearsed at para 42 and agreed with by the UT, without any further reasoning, is very arguably wrong- the paragraphs in the letter to which the SSWP refers cannot be construed as making it clear that the determining criteria for qualifying for conversion is whether a claimant has LCW (one could just as easily decide that those with LCW would not be converted reading those paras).

Hi Steven,

Has a decision been made as to whether to apply for leave to appeal?

I have used the argument of “official error” leading to an anytime revision. Basically, whether the claimant gets a letter after a medical or without a medical, I complete a GL24 simply stating it is an official error to decide the group the claimant should be in without the benefit of a medical examination.
This results in one of three things, the claimant is placed in the support group, the claimant is sent for a medical or the appeal is processed to appeal.
If the DWP refuse the revision then this is appealable, when Martin’s argument will no doubt prove successful.

does anyone know whether leave to appeal against JM V SSWP (CSE/269/2012) has been applied for/granted?

Summaries of the cases were posted in the rightsnet briefcase section the other day and summary states ‘NB - It is understood that the claimants are seeking leave to appeal to the Court of Appeal.’ Is this known or a case of Chinese whispers?

The 3 months deadline from 15/5/13 is up today. Someone involved in the cases must know by now whether anything lodged to Court of session for their case..

Whenever I bring this up at a hearing, the Judge rolls their eyes and I feel like I’m doing a retelling of the Monty Python ex-parrott sketch.