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ESA Support Group for sex offenders

Ian Sutcliffe
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WRO Advice Shop West Lothian

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Has anyone had difficulty getting a customer who is on the WRAG of ESA onto the Support Group? I have a customer who was in the Support Group from 2014 until recently where he was placed in the WRAG. Any advice would be appreciated

past caring
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Welfare Rights Adviser - Southwark Law Centre, Peckham

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No - not had such a case.

But if the argument is on the basis of their sexual offending you’re going to need pretty convincing evidence that 17 (a) in Schedule 2 is met - ‘disinhibited behaviour unacceptable in any workplace on a daily basis’ - and hence 14 in Schedule 3 for the Support Group. Or that reg. 35 is met - work related activity would pose a significant risk to the health of any person.

The fact that their behaviour has constituted such behaviour or risk in the past will not, on its own, be enough.

Ian Sutcliffe
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Thanks for the swift response. I am trying to manipulate the schedules using him being on the sex offenders register for 10 years. Don’t know if there are any restrictions on him going near children, schools, colleges, using public transport etc etc as part of his early release

Stainsby
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“The fact that their behaviour has constituted such behaviour or risk in the past will not, on its own, be enough”

Maybe so but my answer below is becoming a standard submission :

. It is X’s contention that his condition has not changed significantly since the previous Work Capability Assessment (WCA) and it is arguable that the burden of proof is on the DM to show otherwise in order to justify his superseding decision. (CIB/1509/2004 at [12-13], DB v Secretary of State for Work and Pensions (IB)[2010] UKUT 209 (AAC) CIB/2734/2009 at[17])

. In SF v SSWP (PIP) [2016] UKUT 0481 (AAC) CPIP/1693/2016 Judge Wikeley held at[ 22]

22. Thus the principles and guidance set out by Mr Commissioner Howell QC in R(M) 1/96 are not rendered redundant by the simple fact that the Secretary of State has instigated a Planned Review, obtained a fresh HCP report and concluded that there is now no longer any ongoing entitlement to PIP, making a supersession decision to that effect. The extent to which reasons have to be given in such a case will obviously be context-dependent. However, in a case such as the present, where there was such a stark contrast between the two decisions, the FTT could not simply pretend that the award the previous year was simply a matter of ancient history and of no current potential relevance. It was incumbent on the FTT at least to express a view e.g. that there had been a significant improvement in the Appellant’s condition and functioning in the intervening 15 months. That may well have been the situation in the present case, but the FTT did not say so and certainly did not make the necessary findings of fact to support such a conclusion. I therefore allow the appeal on this ground too.

The principles in R(M)1/96 were set out at[15-16]

“15. It does however, seem to me to follow from what is said by the Court of Appeal in Evans, Kitchen & Others, that while a previous award carries no entitlement to preferential treatment on a renewal claim for a continuing condition, the need to give reasons to explain the outcome of the case to the claimant means either that it must be reasonably obvious from the tribunal’s findings why they are not renewing the previous award, or that some brief explanation must be given for what the claimant will otherwise perceive as unfair. This is particularly so where (as in the present and no doubt many other cases) the claimant points to the existence of his previous award and contends that his condition has remained the same, or worsened, since it was decided he met the conditions for benefit. An adverse decision without understandable reasons in such circumstances is bound to lead to a feeling of injustice and while tribunals may of course take different views on the effects of primary evidence, or reach different conclusions on the basis of further or more up to date evidence without being in error of law, I do not think it is imposing too great a burden on them to make sure that the reason for an apparent variation in the treatment of similar relevant facts appears from the record of their decision.

16. Relating this to attendance or mobility cases, if a tribunal, in a decision otherwise complying with the requirements as to giving reasons and dealing with all relevant issues and contentions, records findings of fact on the basis of which it plainly appears that the conditions for benefit are no longer satisfied (e.g. a substantial reduction in attendance needs following a successful hip operation, or the claimant being observed to walk without discomfort for a long distance) then in my judgment it is no error of law for them to omit specific comment on an earlier decision awarding benefit for an earlier period. Their reason for a different decision is obvious from their finding. In cases where the reason does not appear obviously from the findings and reasons given for the actual conclusion reached, a short explanation should be given to show that the fact of the earlier award has been taken into account and that the tribunal have addressed their minds for example to any express or implied contention by the claimant that his condition is worse, or no better, than when he formerly qualified for benefit.  Merely to state a conclusion inconsistent with a previous decision, such as that the tribunal found the claimant “not virtually unable to walk” without stating the basis on which this conclusion was reached, should not be regarded as a sufficient explanation, and if the reason for differing from the previous decision does not appear or cannot be inferred with reasonable clarity from the tribunal’s record, it will normally follow in my view that they will be in breach of regulation 26E(5) and in error of law

Mr X is at least entitled to a proper explanation as to why the DM departed from the previous decision

past caring
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Fair enough as general points in situations where an award is reduced or removed, but we still don’t know whether it was the client’s sexual offending that resulted in their being placed in the Support Group previously - it could have been something else entirely. An offence which has resulted in someone being placed on the sex offenders register for 10 years will have occurred 10 years ago - I would not want to try to argue at tribunal that my client poses as much risk as he or she did a decade ago without something more.

Further (and without wanting to suggest that some sexual offences are ‘less bad’ than others) we don’t know why the client ended up on the register - a ‘one off’ offence or something that was entirely out of character will result in someone being placed on the register just as much as a series of offences which indicates that children/women/those with learning difficulties as a whole are at risk - but I’d suggest that it is only the latter type of personality disorder category offending that would result in the terms of 17 (a) in Schedule 2 and 14 in Schedule 3 being met, or for reg. 35 to apply.

Lastly, even if the sexual offending was of the latter type, the fact that the client was deemed eligible for and was granted early release would suggest (absent anything else) there has been some improvement in behaviour/risk.

None of which is to say those difficulties with the case cannot be overcome, but the above factors do make me believe that this particular/unusual type of case requires something more than a ‘Mr X states his condition hasn’t changed - it is up to the SoS to show otherwise and to demonstrate that grounds for supersession exist’. And that’s aside from the advisability of the claimant making statements in court that might give grounds for their early release to be reviewed….

[ Edited: 15 Feb 2018 at 03:52 pm by past caring ]