Can Work Programme Providers ignore a Tribunal decision

Client has recently won her ESA Tribunal, awarded 6 points (amongst others) for not being able to get to a familiar place etc under 15(c). The Work Programme Advisers have asked her to travel 22 miles to attend her work focussed interview however client is not familiar with the location, client has no one at all to go with and suffers from mental health. Client may well get sanctioned for failing to attend however the Tribunal agree she cannot travel alone etc. Would any sanction that is imposed be in breach of the Tribunal decision. Any ideas please!

The tribunal decision has no legal bearing on how the work focussed interviews are conducted. 

However, the work programme are clearly being unreasonable.  I would advise you to telephone them to see if a closer location can be found for the work focussed interviews or whether they could be conducted over the telephone.  If this does not work, I would advise the client to speak to her councillor or MP.

What about the Support group under Reg 35- if there is clear evidence that engaging with the WR activity would cause harm then they might qualify.

That’s what I was thinking Pete, we had client recently who we successfully got into support group, on appeal, because of her difficulties leaving the house unaccompanied and hence finding it very difficult to make WFI’s as required.

A couple of thoughts;

i) I wonder what would happen if the claimant asked for a review of the original decision under reg 35 with particular reference to the WR activity as it is currently set and the DWP then changed the WR activity to something the claimant could reasonably manage?

ii) Could it be an error of law that the original tribunal (potentially) made assumptions that the DWP would only require WR activity that would not be harmful and for that reason put the claimant in the WRAG

I think there was some case law about tribunals not making assumptions like this but I’m afraid I can’t remember the reference.
(edited to correct spelling)

Pete C - 20 June 2014 12:07 PM

A couple of thoughts;

i) I wonder what would happen if the claimant asked for a review of the original decision under reg 35 with particular reference to the WR activity as it is currently set and the DWP then changed the WR activity to something the claimant could reasonably manage?

ii) Could it be an error of law that the original tribunal (potentially) made assumptions that the DWP would only require WR activity that would not be harmful and for that reason put the claimant in the WRAG

I think there was some case law about tribunals not making assumptions like this but I’m afraid I can’t remember the reference.
(edited to correct spelling)

paras 36 & 37 of ce/2073/2013 for starters

point (ii) especially is in issue in CE/3453/2013 in light of the SoS’s evidence that no medical information is passed up to WPPs from JCP; how can any WRA be “reasonable” when the WPP doesn’t know a jot about what health problems a claimant might have?

As to the case in hand I’d apply for supersession of the FtT decision on grounds of ignorance of material fact that the WPP was 22 miles away and thus places an undue and unexpected burden on the claimant. Their refusal to supersede will carry appeal rights and the appeal should iunsulate your client from further activity by the WPP (although you might need to push that through your local ESA advisers).

And on the OP you culd argue the sanction alongside Judge Gray’s advice in MT v SSWP 2013 UKUT 0545 as she suggested pretty much the same approach.

The 22 mile trip may well consititute a breach of the Equality Act in light of the Tribunal’s findings too…There’s an oral hearing recently been heard discussing the effect of the Equality Act and teh ESA scheme generally; IIRC Judge Gray mentions it somewhere in MT, however I’d think there a cause for damages if they referred to a centre 22 miles away with a Tribunal finding such as that.

I can look at bringing a discrimination claim in this regard.

Feel free to give me a bell on 01942 77 4162 to discuss.