Mandatory Reconsiderations ESA needing to claim JSA

DManville - 18 September 2013 11:57 AM

.. the lack of upward referral for late applications for revision.

The DWP and I disagree about the significance of the refusal of a late application to revise. They claim it stops an appeal, but I can’t see why it would.

The new regs only require that “the Secretary of State has considered on an application whether to revise the decision under section 9 of the Act”. Section 9 does not set a time limit for making an application. It does limit, to a prescribed period or circumstances, when an application will actually lead to revision, but that’s a different question.

An application can be made at any time even if it will be refused as having no merit. Regulation 3 specifies which applications have merit, and restricts this for applications that are made outside one month. But to reach a conclusion that an application has no merit for lateness, or that the grounds for revising later don’t apply, the SoS is considering whether to revise.

Richard Shields - 18 September 2013 01:44 PM

In this scenario wouldn’t we argue that the conts JSA claim would be voided essentailly as the consts ESA claim was reinstated and therefore the client would be good to go re a new JSA claim? If the voiding of the JSA claim doesnt happen then working out the 365 days of conts ESA will be a nightmare as it will not be a continouous period.

If that doesnt work - I think they would get whats left of the 6 months entitlement to conts JSA - so if the Mandatory Reconsideration stage takes one month (la la land I know) that would leave 5 months of entitlement left? This would be the case if someone is found fot for work post tribunal.

Does this make any sense?

it does but am not sure if they could treat it as the same claim unless they were linked, situation would also change if they lost the appeal.

welfare reform really is simplifying this system.

http://www.rightsnet.org.uk/forums/viewthread/4730/
http://www.rightsnet.org.uk/forums/viewthread/4730/P15/

Spoke to two local JC+ regarding their views on the changes likely to come their way from 28 October.

First one did not have any thoughts as they are waiting for National Learning & Development Team to send them an ‘operational manual’. Asked about when this would be forthcoming from on high….probably a few days before…so they can brief their staff.

Second JC+ started a bit more hopefully as they had just had an over-view meeting this morning (I’ve got to admit I shuffled forward from my slumped position); ‘What potential pitfalls did they envisage?’….paused reply ‘no early warnings were raised at the meeting’ resumed slumped position.

Decided to check out the actual nuts and bolts of the wonderful telephone claims (unfortunately without the of reading the above links first). Waltzed around the houses a few times before getting past the ‘claim on line’. ringing for an operator to become available….9 mins later, music stopped, line answered, background noise of office, me waiting for official greeting….then shouting ‘HELLO’ in my quiet Northumbrian accent…..other end hung up.

I give up, they’ve won.

Tony and others are right about the seriousness and the absolute immorality of this decision.  One effect will be to institutionalise food banks as part of the Social Security system   ruth

We’ve been submitting some FOIs to do with this issue and not been getting very far.  Maybe others can think of some more effective approaches?

First FOI
1) How many jobcentres have a plan in place to address the likely rise in vulnerable sick and disabled individuals who are either without money during their reconsideration or are forced to try to meet the conditions of JSA?
  a. All Jobcentres are equipped to provide all benefit claimants with the support they need, including those with a health problem or disability and who claim JSA while an ESA reconsideration is ongoing.
2) How many jobcentres plan to increase the number of Disability Employment Advisors to support individuals affected by mandatory reconsideration?
  a. We continually look at our staffing levels across our Jobcentre network and the number of Disability Employment Advisors will be monitored to address any variances in demand.
3) What extra resources (if any) have been allocated to Benefit Delivery Centres to ensure that staff considering reconsideration requests are not overwhelmed by increased demand?
  a. At National level Benefits Directorate plan the introduction of change and balance resources across all priorities to meet demand. Mandatory Reconsiderations are part of the wider Welfare Reforms Act of 2012, and are intended to streamline the process of reconsidering a benefit decision before embarking on the more time consuming process of Appeal. Our Decision Makers are best placed to reconsider the original decision and expected volumes have been factored into our delivery planning.
4) How many Benefit Delivery Centres have a plan in place to address the likely rise in reconsideration requests?
  a. We continually monitor volumes of all our work on a daily and weekly basis to ensure resource is directed where it is needed. Our planning is therefore nationally controlled taking account of local Site level experience. This way the whole network of Benefit Centres is able to balance its resource requirements to ensure an even delivery of customer service across the country.

Second FOI
1) Please supply the details of the number of full time equivalent Disability Employment Advisors for each jobcentre in England (e.g. Woolwich 1, Eltham 0, etc).
  a. Full data available by emailing owen.stevens @ royalgreenwich. gov.uk. 
  b. There are 327 JCPs with less than 1 fte DEA and only 133 with at least 1 DEA. 
  c. More than 100 JCPs only have a DEA for half the week.

Third FOI
1) Please supply me with the waiting time for a DEA appointment for each of the jobcentres in the spreadsheet.
If finding this information would not be possible within the time-constraints imposed under foi legislation then please just supply me with the information requested for Greater London jobcentres. “
  a. Unfortunately we do not hold any information on the waiting time for DEA appointments and so will be unable to fulfil your request on this occasion.

Fourth FOI
1) Please identify what information is available that monitors the demand for Disability Employment Advisers.
2) The DWP have said that “the number of Disability Employment Advisors will be monitored to address any variances in demand”. Please tell me how the DWP monitors variances in demand for Disability Employment Advisers.
3) Please release all documents supplying data on, and/or DWP opinion of, demand pressures for the DEA service in 2012/13 and 2013/14. 

Deployment decisions are taken by local managers and are made in the light of local circumstances. As with all such decisions they are kept under review so that services can be maintained and targets met. The national full time equivalent allocation for Disability Employment Advisors for the financial year 2013/14 is 569.68
The Department for Work and Pensions (DWP) does not hold a central record of all documents relating to demand pressures for the DEA service. We estimate that the cost of complying with your request would exceed the appropriate limit of £600. Under section 12 of the Freedom of Information Act the Department is not obliged to comply with this part of your request.

Actually, Owen, I think that tells us all we need to know (and nothing we couldn’t have predicted, sadly). Good on you. Love the response to the 4th FOI request…

I’m attaching the raw data on DEAs by JCP mentioned in my post above.  Also includes some basic analysis done by me.

What happens to a claimant who is placed in WRAG and whose local JCP does not have a DEA?

Whilst I’ve been aware of, and certainly concerned about, the substance of these changes, have to admit I’ve taken my eye off the ball when it comes to the dates they come in.  I’ve just read the new Decisions and Appeals Regs 2013 for the first time today.  Ditto the new bits of section 12 of SSA 98 substituted by the WRA 2012.

Firstly, am I right in thinking that mandatory reconsideration is effective for new style ESA and JSA (ie contributory), Universal Credit (I’ve not got round to reading the Universal Credit Regs yet - at all.  Actually been hoping UC is scrapped so I can scoff at those who have) and, of course, PIP together with those other areas of law mentioned in Sch 11 to WRA 2012?  In which case, PIP aside, we’re not going to see this affecting clients until UC is implemented in our postcodes.  I suspect I’ve got that wrong because I keep hearing 28/10/13 mentioned whenever mandatory recon is discussed.

Secondly, I find the new regulation 7 D&A Regs 2013 (which provides for mandatory recon) confusing.

Section 12 SSA 98 as substituted by section 102 WRA 2012 provides:

“(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:

(a) in relation to..n/a, or
(b) where regulations under subsection (3A) so provide

(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.

(3B) The regulations may in particular provide that that condition is met only where–

(a)  the consideration by the Secretary of State was on an application,
(b)  the Secretary of State considered issues of a specified description, or
(c)  the consideration by the Secretary of State satisfied any other condition specified in the regulations.

Regulation 7

(1) This regulation applies in a case where–

(a)  the Secretary of State gives a person written notice of a decision under section
8 or 10 of the 1998 Act (whether as originally made or as revised under
section 9 of that Act); and

(b) that notice includes a statement to the effect that there is a right of appeal in
relation to the decision only if the Secretary of State has considered an
application for a revision of the decision.

(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.”

Subsection (3A) above makes a right of appeal conditional on a mandatory reconsideration in “such cases or circumstances as may be prescribed”.  Subsection (3B) then hints at what some of those circs might be.  However, to date (and I stand to be corrected on this) the only one we have is where the DM states in the decision letter that a mandatory recon is necessary (Reg 7(1) above).  In other words, “you cannot appeal immediately because it says so in the decision letter”.  That cannot be right.  It is too uncertain.  It leaves open the possibility of the DM having some kind of discretion over whether to include the mandatory recon statement in the decision letter.  Eg, could the DM give a claimant the benefit of the doubt and not include it in order to allow him/her to appeal straight away? 

Further regs under subsection (3B) must be on the way to make sense of this.

Edit: My original post had mentioned that section 12(2) was badly drafted and arguably did not clearly provide for a right of appeal following the making of a mandatory recon.  However, I was relying on the Blue Volumes’ version of section 12(2) SSA but that, although updated, is, unusually for the Blue Volumes, wrong (the words “in relation to” should be in sub para (a) of subsection (2) not, as the Blue Volumes has them, in the main body of subsection (2)).  That totally changed things and removed any confusion: there’s obviously a right of appeal.

My understanding is that mandatory recon for con/ESA/JSA came into force in April this year but only where the SoS sent the prescribed notice.  The DWP said that they wouldn’t implement this until October; obviously by not issuing the prescribed notices.  Thus, at present there is a straightforward right of appeal.  I think the discretion afforded by reg 7(1)(b) is probably due to sloppy drafting.  It could be easily remedied by a simple amendment to reg 28 of the D&A Regs.  I agree that the absolute right of appeal remains solid under 12 and, in my view, as raised elsewhere, also against a refusal to admit a late recon.

MrFinch - 04 December 292277026596 03:30 PM

against a refusal to admit a late recon.

I haven’t had time to look at the regs yet but strongly suspect I will be toward the front on the queue with the late recon. I rarely see a decision within the time limits. Shame as I was warming up a JR…

My understanding with the recent announcement was that the new procedures are rolling out to all benefits rather than just the new style ones.

Sorry. Can’t figure out what happened with my quote tags there. Bad netiquette I know but I’ll just have to lump it.

For what it’s worth, the HMCTS appeals leaflet (not updated since April) is clear about the new procedure applying to all DWP decisions after 28/10/13, and the old (GL24) procedure being used for non-PIP/UC before that date.
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/sscs1a-eng.pdf

I have been assuming for some reason that HMRC decisions would follow suit, just leaving HB under the old appeals process?

Peter Turville - 13 September 2013 03:27 PM

We raised the practical / administrative issues about MR in WCA cases at a JCP stakeholder meeting a couple of weeks ago.

How will JCP handle a large volume (see the quarterly tribunal stats on todays news page!) of ESA to JSA claims and then back again following the revision decision (on the assumption few will actually be revised in favour). Given the possible delay in processing new JSA claims and then new ESA claims and that the DWP IT system cannot hold ‘live’ ESA & JSA claims at the same time (= large numbers of clerical claims?), the number of requests for STBAs the inevitable delays will generate, will JSA have sufficient PIs to deal with all the additional JSA claimants etc. etc. etc.

To say JCP had no idea what was about to hit them would be an understatement!

We have provided them with a detailed list of practical questions about situation that are going to arise at each stage of this ESA - JSA - ESA process. They have agreed to provide a detailed written response!

We await the response with interest! Will we receive it before 28 Oct?

Can you send me that list of questions to me too - .(JavaScript must be enabled to view this email address)
cheers

There’s a handy page on the CPAG website:

http://www.cpag.org.uk/content/new-appeals-rules-and-procedures

which says the HMRC benefits may (or may not!) follow in April 2014 but HB stays under the old system. I wonder if the government was so confident about UC roll-out that they decided HB could be left to die quietly, whereas it will be with a lot of us for quite a time, I think.

There are other interesting comments, about appealing without a Mandatory Reconsideration Notice for instance.