Withdrawing an ESA appeal

Can anyone clarify for me if the DM at JCPlus is trying to hoodwink me into withdrawing an appeal for my client.

My client failed her WCA from 16-10-2009 and was so distressed she was admitted to hospital overnight after collapsing. She contacted DWP on her discharge the following day and was very anxious and tearful and told whoever she spoke to that she could not face going for a further medical or appeal tribunal and a very kind well meaning member of staff advised her to claim Income Support as a lone parent as she had a child young enough to do this.  She made a claim for IS but has continued to be sick and her condition has actually deteriorated.

You know whats coming, due to childs age she was advised in June 2010 she needed to claim JSA and was so distressed again that she was referred to me by her GP who was so concerned about her health she has referred her for further treatment etc. I assisted with a new claim for ESA from 7/6/2010 (she has now failed this WCA and this is under appeal), I assisted with DLA which was refused as the main evidence used by the DM was the failed WCA assessment of October 2009 (this is also under appeal) and I submitted a late appeal against the original failed WCA from October 2009.

The late appeal was accepted but the DM at JCPlus has now contacted me saying that as client claimed IS as a lone parent and the legislation states she cannot have ESA-ir and IS at the same time and there is no flexibility in the legislation to treat the IS as ESA they will forward the appeal to the tribunal service but it will be thrown out!!! They are suggesting I withdraw the appeal and to be honest I don’t think the client would make a good witness at appeal as she has already stated she told DWP she could not cope with going to an appeal or further medical but it stinks of total injustice…

I have limited appeal experience and want to do the right thing for my client. Any advice or suggestions?

Sue

I can’t see the ESA appeal being thrown out.  The tribunal cannot have regard to circumstances not obtaining at the date of the ESA decision, and therefore cannot take account of the subsequent Income Support claim. What Jobcentre Plus do about it should you succeed is the issue.

My view would be that the decision to award income support could be revised as your client, on re-opening of the ESA award, would not be entitled to Income Support from the outset (by virtue of her being entitled to ESA).  Income support paid should be offset against the arrears of ESA now due, and ESA put into payment.

There is probably a DMG memo that says something entirely different…...

On the issue of her not being a reliable witness - from what you say this woman is pretty unstable and seems to have GP support.

Have you looked at Regulation 29 of the ESA Regs 2008?  The Exceptional Circumstances Reg.

Maybe you could ask the GP to provide a letter of support which states that there would be a substantial risk to her mental health if she were found not to have LCW.

If you could get this she may then not have to attend a Tribunal - it could be reconsidered or won on paper?

If a claimant is entitled to both IS and ESA it is IS which wins: s1(3)(e) Welfare Reform Act says a basic condition of entitlement to ESA is not being entitled to IS. I can’t see any way around this but a successful appeal may help in trying to get ex-gratia payments for losses through bad advice.

Agree with sovietleader.

IS and ESA are mutually exclusive.  Entitlement to IS does indeed preclude entitlement to ESA (section 1(3)(e) Welfare Reform Act 2007).  But then again entitlement to ESA equally precludes entitlement to IS (section 124(1)(h) Contributions and Benefits Act 92 - for the claimant at least).

The question is, therefore, which benefit did she claim first: ESA or IS?  The answer: ESA.  Consequently, if she is successful at the appeal against the 16/10/09 decision, the ESA should be restored to that date and the appropriate ESA component payable 14 weeks thereafter. 

The IS decision should be revised under Reg 3(5)(a) Decisions and Appeals Regs (official error). 

However, the problem here is that the DM is very unlikely to revise the IS even if the late ESA appeal is successful.  He is not, after all, bound by the ESA tribunal as the latter can only look upto the 16/10/09.  For that reason, you should urgently submit a late appeal against the IS decision.  The time limit is 13 months from the date of the letter awarding IS.  The grounds for the late appeal are that you will be denied a remedy (other than perhaps judicial review) against not receiving full ESA arrears should the late IS appeal not be admitted (there is nothing wrong substantively with the IS decision itself).  It is clearly in the interests of justice that the appeal be admitted late.

Upon the IS appeal being admitted, have both the late ESA and IS appeals heard together.  Should the tribunal allow the ESA appeal (best argument appears to be what Nicky says), the tribunal will then have the power itself to revise the IS for official error.  The fact the DM did nothing wrong at the time of the original IS award does not prevent a tribunal with the benefit of hindsight finding that he made an official error.  The IS tribunal stands in the DM’s shoes and is able to make any decision that was legally open to him – R(IB) 2/04.  The only decision a DM could have legally made on an IS claim by someone in receipt of ESA would be that they were not entitled to IS in accordance with section 124(1)(h) above. 

The later ESA award dated 7/6/10 should be revised upon the late appeals being successful.  However, given your hopeless DM, you’re probably wise to have appealed that also.

Just to be clear, the tribunal’s use of hindsight above is in respect of facts that existed before the date of the decision under appeal but which only became known after that decision was made.  Eg, the ESA entitlement existed when the client first applied for IS, but that fact only became known much later following the substantive hearing of the late ESA appeal.  For a further example of this principle see CJSA/2375/00 discussed in the commentary in the new edition of Vol 3 2010/11 at pages 232-33.

Hope this helps you defeat the DM, who is definitely hoodwinking you.

Thanks to everyone who has helped throw some light on this matter. I am ringing the DM today and taking the necessary action with regard to the late appeal for IS.

Cheers
Sue