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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

Remitted to Secretary of State for final decision?? 

Bonnie
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Hi all,

Cl went to tribunal for ESA and was placed in the WRAG. In the decision notice it states, ‘The matter is now remitted to the Secretary of State to make a final decision upon entitlement to ESA’.

I’m confused. Cl has been awarded ESA, placed in the WRAG, the tribunal has recommended that he isn’t re-assessed for 24 months; so what is there left to decide??

Am I missing something? Any help would be appreciated.

John Birks
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The money?

Elliot Kent
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Bonnie - 13 October 2017 09:50 AM

So what is there left to decide??
.

Whether he meets the income/contribution conditons
What his weekly entitlement should be and whether any premiums apply
Whether he satisfies the habitual residence test
When the assessment phase ends from
What arrears are due to him and whether any offet needs to be applied
etc etc.

The Tribunal is only normally concerned with working out which descriptors or exceptions apply but there is a lot more to be done to actually give effect to the decision.

I had a client once who went through a very long appeals process (two adjournments, a postponement behind IM and an eventual two hour hearing) simply to get her national insurance credits for incapacity back. The decision notice said “x is entitled to ESA” but she wasn’t as her partner was working.

Bonnie
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Thanks for shedding some light on this. I understand that there are many things left to decide, contributions, income, premiums, etc. Client was previously in WRAG.  I am concerned as I have never had this on a decision notice before.

Elliot Kent
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Its not normally stated directly on decision notices but its implied. Perhaps its the drafting style of the particular judge or perhaps something was said at the hearing that suggested there might be other issues involved.

HB Anorak
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I believe that technically the final decision on entitlement, including all of the outstanding matters listed above, will still be a decision of the Tribunal.  This is important if there is any further dispute about those issues: the claimant should have liberty to restore the matter to the Tribunal without going through a fresh MR cycle.

I don’t think a Tribunal can make half a decision - it can remit parts of the assessment to DWP, but ultimately there will be a single outcome decision that the claimant is (or is not) entitled to ESA of a certain amount from a certain date, and that decision in your case will be a decision of the Tribunal.  DWP already had their chance to make a decision, they got it wrong and the Tribunal overturned it.  It will now forever be a Tribunal decision until such time as it is superseded in the ordinary course of events.

John Birks
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From the OP the appeal involves the Limited Capability for Work assessment or Limited Capability for Work-Related activity assessments which requires a Tribunal Judge and a MQTM.

That being the case the decision is just that.

A decision on any amount payable for whatever reason is a different decision subject to separate appeal rights.

It may be there have been other matters raised during the appeal but if the matter was one of payment (for instance) then the tribunal could not deal with it (IMO) as it’s wrongly constituted.

HB Anorak
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Ah, we are back to the old question: is LCW an outcome decision in itself, or can it only ever be a constituent determination embodied in a UC or ESA decision?

I would say the appeal is against refusal of ESA, on the ground that DWP has wrongly determined that the claimant does not have LCW.  Because of the ground for appeal the Tribunal requires an MQTM in accordance with the practice statement of 31 July 2013, but the Tribunal has jurisdiction to make the outcome decision all the same.

The Tribunal has decided that the claimant is entitled to ESA in principle, subject to income etc, and has remitted those matters for determination by DWP - but with immediate liberty to restore to the Tribunal in the event of any dispute.  I don’t think you can have two co-existing outcome decisions that (1) you have LCW and (2) you are (or not) entitled to a certain amount of ESA, with separate appeal rights for each.

We get decisions like this a lot in HB supported accommodation appeals: Tribunal indicates that it is minded to find the claimant does occupy exempt accommodation and remits the entitlement calculation to the Council.  The remitted calculation completes the single outcome decision of the Tribunal.

John Birks
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Experience show’s that there are many WCA/LCfWRA appeals that are really entitlement decisions. It’s just that no one seems to notice. Or maybe they don’t like to mention it?

Bonnie
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Thanks for the replies.
I will contact the client and wait for a letter from the DWP to see what they say.

CANcan
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Ah just noticed this new formulation on my most recent successful decisions too - and similarly was guessing this was purely with regards to income and other qualifying criteria. Why they now feel the need to state it is unclear.

Mike Hughes
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I suspect they don’t feel the need to state it at all. However, the pressure from the DWP to avoid endless requests for set asides or SOR and ROPs is probably behind this.

Elliot Kent
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I think I mentioned in the other similar thread, but I think its because the WRAC is no longer payable to everyone in the WRAG so they can’t put “x is entitled to the WRAC” anymore.