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DWP changing mind re permanent RtR

From the other side
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CRU/CARF-FIFE

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DWP decided in Aug 15 that client had achieved permanent right to reside when he claimed benefit. 

Client then came off benefit in Nov 16 and started work with an Agency. He worked to late Jan 17 and claimed ESA from Feb 17, no delay.

However, the Decision Maker has now decided that the decision in Aug 15 was not correct and that client should not have been granted a permanent right to reside. They have now looked at their worker status for the current claim and decided that they fail HRT as Tier 1& tier 2 not satisfied re MET.

Can/should they review a decision like this? 

I will be happy to challenge through Tribunal re Tier 1/2 situation as that is only DWP guidance!

ClairemHodgson
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Solicitor, SC Law, Harrow

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probably

but this may be of use depending on your client’s facts…
http://www.bailii.org/uk/cases/UKUT/AAC/2017/145.pdf

HB Anorak
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Have the revised the original decision in 2015, or merely refused the new claim?

They can certainly refuse the new claim by taking a different view of the facts from the view they took in 2015 - the earlier award is done and finished with and this is a completely new claim with everything back on the table.

But if they are saying the claimant was never entitled to ESA from the start they will need to make out grounds for revision, such as facts that existed in 2015 but were not known to DWP at that time.

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It is a new claim to ESA after a period of work (10 weeks).

They haven’t reviewed previous decision (or at least not yet!!)

Client had been on JSA prior to starting work. He had been jumping between JSA/ESA since 2010. Had a reasonable work history from May 08 - April 10 but only 2 employers were under WRS and neither was in excess of 1 year. Using TG would give near enough 2 years continuous work and then onto benefits. I have asked DWP for details of all periods on JSA/ESA.

HB have also jumped on DWP decision!

HB Anorak
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HB don’t have to follow DWP’s decision.  Refusal of ESA(ir) removes the passporting effect in HB, but it doesn’t mean the claimant automatically fails HRT for HB as well - they have to take their own view.  See https://assets.publishing.service.gov.uk/media/58170f39e5274a03bd000000/CJSA_0215_2016-00.pdf

The Council could, for example, decide the recent work was effective and genuine and conclude that the claimant now retains worker status during a period of temporary incapacity, without waiting to see what the court says in Gubeladze.

Permanent right to reside probably does rely on Gubeladze decision so until we hear the result of that case everything depends on whether the most recent work was effective and genuine.

[ Edited: 28 Apr 2017 at 10:00 am by HB Anorak ]
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Thanks, was aware that HB should not follow DWP and hopeful that they accept client as retained worker following his period of work!

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After request for MR, they have changed mind again and granted “permanent right to reside” !!

Happy days