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Upper Tribunal finds that DWP failed to make legally valid ESA decisions
Here’s a link to the Outer Temple Chambers transcript of CE/366/2013 and CE/705/2013 where Judge Wright finds that -
‘On the basis of the evidence and legal arguments put before me I have concluded that no legally valid decision purporting to find either claimant to have limited capability for work was made by the Secretary of State at the relevant time. In short, this is because I am not satisfied on the evidence that either the health care professionals or Secretary of State’s decision makers involved in fact “scored” either claimant against the descriptors in Schedule 2 to the Employment and Support Allowance Regulations 2008 so as to assess the extent of their limited capability of work. This “assessment” is fundamental to the proper operation of the statutory scheme and the failure to carry out such an assessment renders the decisions made legally invalid.’ (paragraph 4)
http://www.outertemple.com/news-item/494/index.html
NB - the judgment relates to assessments carried out ‘on scrutiny’ before a change in DWP policy on 4 December 2013 meant that healthcare professionals were obliged to record the likely Schedule 2 scoring descriptors. However, Judge Wright says that a number of cases have been stayed behind these two appeals and so the decision here will have a wider significance then just on these two appeals.
[ Edited: 2 Jun 2015 at 12:28 pm by Ros ]rightsnet case law summary now published -
Does para 78 have any bearing on the common FTT practice of concluding once 15 points have been awarded?
That would be useful for ensuring accurate decisions - but would also lead to a lot longer tribunal hearings
Does para 78 have any bearing on the common FTT practice of concluding once 15 points have been awarded?
bound to have. FTT’s should do the job properly since they are doing what the DM should have done.
and would give rise to same error of law if they didn’t
the main point there is, of course, that if they go through everything then the total will be more than 15 so even if person loses the odd point here and there the total may still end up at more than 15….
person entitled to know all the points s/he should have….
person entitled to know all the points s/he should have….
In an ideal world - but I think most of us have done tribunals which are very distressing for the client and it’s very helpful for the tribunal to stop once 15 points has been found (let alone for the people waiting outside for the next overdue hearing). I can obviously see the legal benefit in ensuring all relevant descriptors are addressed, but think it has *generally* been to both client and tribunal advantage to stop once 15 points have been found.
Its probably just as well this decision didn’t come at the height of all the IB/ESA migration appeals!
[ Edited: 5 Jun 2015 at 01:22 pm by ChrisG ]Sorry JonnyM, have to disagree. While wholeheartedly acknowledging the stress to clients etc. Having the total score would be important (as Judge Wright points out) for consideration of Sch 3, Regs 29 & 35 and it may also assist at a future re-assessement.
If the claimant were awarded a significant number of points on re-assessment the HCP/DM should be alerted to a proper consideration of the case and not go from lots to zero! (OK we live in hope - we have a classic 0 points to 75 plus 2 x Sch 3 descriptors decision on our rogues gallery wall!)
Its unfortunate that this decsion did not come out earlier in the migration process - it might have saved a significant number of WRAG to SG appeals following migration (we had lage number of such appeals with no points score recorded following scrutiny).
Its unfortunate that this decsion did not come out earlier in the migration process - it might have saved a significant number of WRAG to SG appeals following migration (we had lage number of such appeals with no points score recorded following scrutiny).
I think my comment re: the migration process was aimed at the practical impact on FTT decision making at the height of migration (in Sheffield 4 tribunals were being run at any one time, 7-8 a day, and still a 12 month wait)- however I fully agree with your point regarding DWP decision making during migration
I realise the benefits to clients of having all the descriptors assessed by a FTT - on reflection its a good thing - but (as with most things) there will be the downside I outlined