Mandatory Reconsiderations ESA needing to claim JSA

Thanks Paul/Dan

Since my post yesterday, I’ve continued playing catch up with Welfare Reform.

Whilst the D&A Regs 2013 are in force from 29/4/13, they appear to apply only to new style ESA and JSA, ie (the contributory versions of those benefits in accordance with the amending provisions of the WRA 2012).  As we know, the means-tested versions of ESA/JSA are contained within UC, to which the D&A 2013 also, of course, apply.  So the obvious question is when does new style ESA etc start?

I’ve started to wade through the various commencement orders and Article 4(1) and (2)(a) of Order No.9 suggest that new style ESA (along with UC) only commence after 29/4/13 in the relevant trial districts ( Order No.11 extends these districts but it’s still only a limited number of postcodes as we know).

I could have it wrong but, PIP aside, mandatory reconsideration does not appear to commence for ESA/JSA claimants until UC commences in the district where they live.  But it’s not like CPAG to get it wrong so have I missed something?

The Social Security, Child Support, Vaccine Damage and Other Payments (Decisions and Appeals) (Amendment) Regulations 2013
http://www.legislation.gov.uk/ukdsi/2013/9780111540053/pdfs/ukdsi_9780111540053_en.pdf

Not sure if you saw my post in the decisions and appeals thread Tom but these are the regs which introduce mandatory recon for most other benefits. They were still in draft last time I looked but have been approved in both Houses so I guess they will emerge soon enough. Apologies if you have seen them.

Cheers Rosie.  Funny thing is I did briefly look at your other post but obviously Welfare Reform has started to affect my short term memory.  Knew I was missing something though.

MrFinch - 16 September 2013 08:35 AM

The most offensive thing about this whole idea is that in ESA cases it will almost never make sense to submit any new evidence or argument at the MR stage. The sole aim will become to get the MR refused as fast as possible. If evidence were to be submitted it will just slow that down. So we’ll now have, for the first time, a situation where evidence really is deliberately withheld at an early stage!

Agree completely with this.  I am already composing my standard reconsideration wording: “I have no further evidence of fact to offer at this stage.  The dispute is about the inferences you have drawn about my capability for work from that evidence.  That is a question of opinion and I will be relying on the tribunal’s opinion to overturn your decision”.  Something like that anyway.

I’ve just looked at new Rule 22 of The Tribunal Procedure (F-tT)(SEC) Rules 2008. I see, in particular, that an appellant must send to the Tribunal Service the notice of the result of the mandatory recon.  I wonder how many of our clients will throw these out and, if so, how long it’ll take the DM to send a new one out.  Suspect we’ll end up submitting the appeal anyway in those circs and stating that the notice concerned will follow.

Tom H - 20 September 2013 02:04 PM

I’ve just looked at new Rule 22 of The Tribunal Procedure (F-tT)(SEC) Rules 2008. I see, in particular, that an appellant must send to the Tribunal Service the notice of the result of the mandatory recon.  I wonder how many of our clients will throw these out and, if so, how long it’ll take the DM to send a new one out.  Suspect we’ll end up submitting the appeal anyway in those circs and stating that the notice concerned will follow.

Now my impression was that there was some discretion to receive an appeal without the decision notice and I’d assumed I’d find it at rule 5… but I can’t!

I have started a petition “Stop further harassment of ESA claimants”. I just hope we can get the government to agree to pay ESA claimants during the whole dispute process. Please sign this petition & give it as much publicity as you can. You can read more and sign the petition here:
http://you.38degrees.org.uk/petitions/ian-duncan-smith-targets-the-sick-vulnerable
It’s almost like we have been hit by so many terrible changes from this government that the advice sector has given up fighting back. But if we don’t at least try we will get nowhere!

DManville - 20 September 2013 03:38 PM

Tom H - 20 September 2013 02:04 PM

I’ve just looked at new Rule 22 of The Tribunal Procedure (F-tT)(SEC) Rules 2008. I see, in particular, that an appellant must send to the Tribunal Service the notice of the result of the mandatory recon.  I wonder how many of our clients will throw these out and, if so, how long it’ll take the DM to send a new one out.  Suspect we’ll end up submitting the appeal anyway in those circs and stating that the notice concerned will follow.

Now my impression was that there was some discretion to receive an appeal without the decision notice and I’d assumed I’d find it at rule 5… but I can’t!

Rule 7(2)(a)?

‘(2) If a party has failed to comply with a requirement in these Rules, a practice
direction or a direction, the Tribunal may take such action as it considers just, which
may include–
(a) waiving the requirement;
...’

Jon

If a claimant goes through MR, then gets their appeal admitted, they can then get ESA restored at assessment phase rate because Reg.30(3), ESA Regs then applies - they have made and are pursuing an appeal.

But how will this work in practice? If its 2 or 3 months since ESA stopped (because, say, you made the mistake of submitting more evidence for the review) will DWP require a new claim?

And what about the medical certificates which you will then need? Do you continue to send these in while MR is going through, although they’re ineffectual, and will the DWP retain them? Or are you better stockpiling them until the appeal is admitted?

Then there’s backdating. The DWP FAQ on MR (the one charmingly headed ‘Detailed Lines to Take for Customer Representative Groups’ before coming out with a load of lies) says, towards the end, that they will ‘backdate payments to the effective date of decision’, after offsetting any other benefits received for the same period obviously, presumably on the basis that you will then, retrospectively, have satisfied 30(3). I don’t entirely trust this statement and it will be critical for a lot of people, who can scrape through the MR period without claiming JSA provided they get repaid, but not otherwise. Any views or information about this?

Richard Atkinson
DIAL House Chester

Every time I think we have thought of everything that can go wrong something else raises its head. We hadn’t considered the issue of fit notes but I assumed (sorry to use a banned word!) that they would be irrelevant if a claimant is currently claiming or trying to claim JSA in the reconsideration period since as we know any DM decision overrides a GP opinion that a claimant is not fit for work.  Logically then if the decision is changed at tribunal the fact that no fit notes were provided should be irrelevant? Can of worms?

Dolge - 20 September 2013 08:31 PM

..If its 2 or 3 months since ESA stopped (because, say, you made the mistake of submitting more evidence for the review) will DWP require a new claim?

It’s an interesting question but I think the law on this has not changed: the need to make a new claim for ESA pending appeal is waived where you have appealed the WCA decision – Reg 3(j) Claims and Payments Regs.  However, the DWP reps’ guidance to which you refer suggests that ESA pending appeal will be awarded only from the date that the DWP receives confirmation from HMCTS that an appeal has been lodged, ie when DWP receives HMCTS’ request for an appeal response.  Depending on how efficient the new HMCTS processing centres are, there could be some delay between the lodging of the appeal and the start of the ESA pending appeal. 

When the DWP’s guidance states that ESA pending appeal will be backdated to the “effective date” I suspect it is referring to the date that the appeal was lodged with HMCTS, rather than the date of the decision under appeal.  To be fair that position would appear to reflect the law.  So if HMCTS receive my appeal on 2 Dec and the DWP receive confirmation from HMCTS on 6 Dec, the award of ESA pending appeal could start on 6 Dec and be backdated to 2 Dec with any JSA received between 2-5 Dec offset against ESA arrears.  It’s the 2 Dec in this example which represents the “effective date”.  When the DWP in the same guidance discuss arrears going back to the original WCA decision, they are careful to refer to the “effective date of the decision made by the tribunal”.  They are talking about 2 very different effective dates.

The upshot is that a person who does not claim JSA during the mandatory reconsideration (MR) period would appear not to be entitled to ESA arrears for that period where his MR is not successful and he appeals.  He would only be paid for that period should he win his tribunal.

Dolge - 20 September 2013 08:31 PM

And what about the medical certificates which you will then need? Do you continue to send these in while MR is going through, although they’re ineffectual, and will the DWP retain them? Or are you better stockpiling them until the appeal is admitted?

I think sick notes submitted during the MR period could potentially jeopardise any JSA claim.  The DMG provides this:

“42093 Evidence of LCW for a spell of less than eight days, or for the first seven days of a longer spell, may be self-certification(1). Self-certification is only appropriate for the first seven days of a PLCW.

Note: Where PLCWs link (see DMG Chapter 41), a claimant can self-certify for the first seven days of each PLCW even if they are treated as a continuation of an earlier PLCW.

(1) ESA Regs , Reg 5(1)”

If the award of ESA pending appeal starts within 12 weeks of the WCA decision now under appeal, then the two periods of limited capability for work (PLCW) would link.  At that stage Reg 5(1) ESA would not apply, ie the assessment phase of the ESA pending appeal cannot end until after the tribunal hearing.  Consequently, the claimant is able to rely on self certification for the first 7 days of the award of ESA pending appeal. The same would be true even if the PLCWs didn’t link, ie where the MR period lasts for more than 12 weeks.  But I can still see the DWP making any payment dependent on a sick note.  However, even if they follow their own guidance it still means that a sick note is needed from day 8 of the new award.  Perhaps it will suffice if the ESA computer still has registered a previous sicknote which is still current.  Otherwise, I agree Richard there may be further problems or at least delay. 

If the appeal is successful then I think arrears of ESA for the MR period could be paid without a sick note ever having been provided for that period.  As we know, the tribunal’s finding that the claimant has LCW is effective from the date of the WCA decision.  There would then need to be a couple of revision decisions as follows:
Revision of any JSA received during the MR period – Reg 3(5G) D&A
Revision of award of ESA pending appeal – Reg 3(5E) D&A.

Sorry for the delay in responding to your requests for a copy of our questions to DWP on mandatory revison and WCA’s - I have been afflicted with a dose of A/L.

Hopefully the doc is attached!

Please post further issues you have thought of. I will post the DWPs response if/when recieved.

good point Tony - I will add it to our ‘little list’.

Arguably 4(2) does not apply in this circumstance because benefit would be paid under ESA Reg 30(3) - payment of ESA will be made (rather than not made).

we will all await the first refusal to make a STBA in this circumstance - JR anyone?

I’m trying to think broadly about the implications of all this.

In their ‘Detailed Lines to Take for Customer Representative Groups’ the DWP address the high rate of decisions overturned :

‘Early indications suggest that the majority of decisions are overturned owing to the judiciary reaching a different conclusion on the same facts or following verbal evidence being provided at the hearing by the appellant or their representative.’

If they are quoting their own ‘Early analysis of appeals allowed’ from pilot data from July to October 2012’ I can see that - ‘cogent oral evidence’ leads to 40.5% of all decision overturned and differing decisions on the same facts add up to 15.1%. Add in 0.6% where the DM misapplied the law/report relied upon contained significant error. (No reasons given in the remainder of cases)

Back to Esther McVey (sorry) who claims that only 15% of cases are overturned without brand new evidence that ‘nobody…has ever seen before’. If she is quoting from the same analysis, this is an interesting way of turning the stats around. More ministerial abuse of stats?

Apart from the fact that you can’t ‘see’ oral evidence, cases that turned on ‘new cogent documentary evidence’ are only 8.1% of the total.

So the evidence may indicate not that people wait till appeal to tell the truth and to produce decisive evidence out of hats, but that people are not listened to by the DM in a significant number of cases (‘differences between DWP and the tribunal approaches to decision making’ says ‘Lines To Take’!), that decision making remains poor and that there are no real reasons to believe that mandatory reconsideration will make a whit of difference.
 
The only way would be for DMs to take a similar detailed approach to the judiciary and to listen to reps also, during the MR period. Are they really going to? And if they do, how long will it take???

But if we take a non-co-operation approach to MR, could this damage our case or credibility at appeal, and/or would it provide ammunition for a government determined to misrepresent claimants and advice services?

Sorry to go on. Worried.

Andrew Dutton - 25 September 2013 03:44 PM

I’m trying to think broadly about the implications of all this.

Back to Esther McVey (sorry) who claims that only 15% of cases are overturned without brand new evidence that ‘nobody…has ever seen before’. If she is quoting from the same analysis, this is an interesting way of turning the stats around. More ministerial abuse of stats?
.

Yes - Mark Hoban was trotting out the 15% fig. for a while too. This means only 15% of all ESA decisions are overturned on appeal - this includes those decisions where the claimant was found to have LCfW / LCfWRA and there was therefore no appeal. Although I’m not sure where appeals concerning LCfW to LCfWRA fit into these figs.

[quote author=“Tom H” date=“1379869270

When the DWP’s guidance states that ESA pending appeal will be backdated to the “effective date” I suspect it is referring to the date that the appeal was lodged with HMCTS, rather than the date of the decision under appeal.  To be fair that position would appear to reflect the law.

Its always hard to be sure what is meant in these sorts of documents but I think it can’t mean the date the appeal is lodged because the full phrase is the “effective date of the decision”. I suppose this could mean the date of the decision on MR but I don’t think that is likely given the way the phrase is used repeatedly in the thing.

I do share peoples concern that whatever the person who wrote that document think the terms of the regs might be a problem. The phrase “has made and is pursuing an appeal” is in both reg 3(j) of the C&P regs and reg 30(3) of the ESA regs. Can this phrase be said to apply to a period when someone didn’t actually have a right of appeal?

CPAG’s article on mandatory revision states that the DWP’s line is that if a late revision request is not accepted then there is no right of appeal.  I would hope to see that challenged on the ground that it breaches article 6 of the HRA which states:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”.

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