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Mandatory Reconsiderations ESA needing to claim JSA
Minister McVey: Additionally, where employment and support allowance is disallowed following a work capability assessment, claimants are advised about claiming other benefits in a decision assurance phone call.
This call is made at the point the decision maker is considering disallowing employment and support allowance. If claimants want to claim jobseeker’s allowance they are asked if they want to be transferred to a contact centre to make the claim. They are advised that they will be supported by a trained personal adviser who will assess their needs in order to identify the appropriate support to help them find employment.
‘Decision assurance phone call’?????????? Note the aim is employment, implicitly, in every case.
Cue chaos.
It seems there The CPR 54 requirement that challenges to administrative decisions should be brought within 3 months and ‘in any event promptly’ is well known. Its compatibility with the principle of certainty was doubted by Lord Steyn and Lord Hope of Craighead in Burkett v LB of Hammersmith [2002] UKHL 23
Limits the DWP to 3 months for a MR, or am I missing something?
Also see http://www.adminlaw.org.uk/docs/SC 2010 by Gregory Jones.pdf
from 54 onwards
Some people are referring to posts by number which would be a helpful shortcut to finding them in a thread of this length - if I could see the numbers! They have disappeared after the redesign - any help please?
Some people are referring to posts by number which would be a helpful shortcut to finding them in a thread of this length - if I could see the numbers! They have disappeared after the redesign - any help please?
hi rosie - the number of the post is to the right of the darker grey bar at the top of a post. for example, your post is #99. also, clicking on the hash number enables you to link direct to a specific post in a thread.
cheers ros
can you let us know which browser you’re using?
We have just written to our MP encouragin him to sign ethe Early Day Motion 620 and would encourage others to do the same
http://www.parliament.uk/edm/2013-14/620
Sue
Internet Explorer 9.015
Wow you’re up to date compared with us - IE7.. We don’t have “privileges” to update either.
I’m not seeing that Ros. It disappeared since the redesign, which Rosie mentioned.
Don’t know if it’s relevant, but the grey bar is not displaying correctly. I’ve attached a screen print…
(can’t attach - too many pixels. I’ve sent by email)
Cheers Tony .... got your screen shot ... leave it with us ....
Tony CPR 54 requirement that challenges to administrative decisions should be brought within 3 months and ‘in any event promptly’ is well known.
A mandatory reconsideration is an administrative decision and any ruling I believe would start here at the interpretation, but what it means is quite clear to me and I suspect a judge/s. My experience at UT would lead me to presume this.
However the DWP did say they would expedite claims where claimants had no money, but how long that will be is anyone’s guess. I am sure it will be the usual patchwork criteria they set, In Kent, 3/4 weeks Devon 5/6 Ayrshire 8/9 as different offices will determine different speeds.
I do believe a challenge is worthwhile and no doubt like others have submitted a one already. I have expedited them using CPAG’s excellent letter and will see what happens. I have simply argued that 3 months and ‘in any event promptly’ are not the same and that the promptly argument should mean less time. It will be argued before a judge at FtT which I know gives it no legal basis, but gives an idea/indication of what a judge/s might except at a higher level.
With few exceptions permission to bring JR proceedings will generally not be given where there is a statutory alternative remedy. So, I can’t see permission being given against entitlement decisions where MR is that remedy. So that leaves applying for JR for delays in carrying out MR’s
The time limit for lodging the claim runs from “not later than 3 months after the grounds to make the claim first arose”. So at what point does the ground arise. After one month of lodging the MR request and still no decision, 2 months, 6 months, 12? I’d be amazed if permission to bring JR proceedings was given after 2 months of a failure to make a decision but I wouldn’t be if still no decision after 6 months where a person was not in receipt of any other benefit due to DWP failure. Each case will turn on its own facts. My view is that the court will not grant permission lightly and certainly not routinely.
One of my colleagues was at a local JCP event yesterday where she was told that when a client requests a Mandatory Revision of their ESA decision JCP will initially ask if the client has any other income they can manage on. If the client has to make a claim for JSA because they have no other income the ESA claim will remain open and they will have a clerical claim for JSA that can be closed as soon as the revision has been done.
I am trying to establish the acuracy of this info! All those clerical claims - that will be a C20 admin. solution for a prob;em created in a welfare system for the C21 then?
Still no response to our detailed questions to DWP - see post 44. The MP for Witney, amongst others, has now taken these quetions up with the SSWP. Perhaps Santa will bring an answer?
My starting point is ‘ADMINISTRATIVE DECISION’ this I believe needs no clarifications as it is clear in its meaning.
An MR gives a administrative decision, either yes or no, thus on this basis I believe an MR can take no longer than 3 months. Yes it was to do with JR, but having spoken to some retired judges and barristers [in my part of the world there are quite a few] and they all tend to agree with me that this would be the starting point for any decision. They as do I believe it has wide enough legal scope to be within reach of a FtT and a UT.
It is on this basis and there advice and help in my submission I have put it forward for appeal to the FtT.
I’m lost as well. JR. proceedings cannot be brought before a FTT. Proceedings must be brought in the High Court. There is provision to bring proceedings in the UTT against decisions of a FTT in limited circumstances. In my view, most judges of FTT’s in the Social Entitlement chamber would be singularly unqualified to hear JR proceedings.
Edited to substitute the word entitlement for administration
[ Edited: 7 Nov 2013 at 10:11 am by nevip ]One of my colleagues was at a local JCP event yesterday where she was told that when a client requests a Mandatory Revision of their ESA decision JCP will initially ask if the client has any other income they can manage on. If the client has to make a claim for JSA because they have no other income the ESA claim will remain open and they will have a clerical claim for JSA that can be closed as soon as the revision has been done.
I am trying to establish the acuracy of this info! All those clerical claims - that will be a C20 admin. solution for a prob;em created in a welfare system for the C21 then?
Still no response to our detailed questions to DWP - see post 44. The MP for Witney, amongst others, has now taken these quetions up with the SSWP. Perhaps Santa will bring an answer?
We have now been advised:
“[the processing office] have measures in place to ensure a smooth transition from ESA to JSA.”
“If there is a necessity for a clerical claim. the claimant will be advised, but ....... this will not be the norm.”
We have therefore requested details of the measures!
Hmm, interesting - just received a decision notice dated 1 November with no mention of mandatory reconsideration.. It’s a right to reside decision refusing income related ESA (as a top up). We will almost definitely be appealing.