× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

ESA – migration cases – inaccurate IRESA assessments?

‹ First  < 18 19 20 21 22 >  Last ›

FerhanaBhogadia
forum member

Senior WRO - Leicester City Council Welfare Rights Service

Send message

Total Posts: 45

Joined: 18 June 2010

Dan Manville - 29 March 2018 01:58 PM

Now I don’t want to steal CPAG’s thunder however it probably, quickly, needs saying that appealing against these decisions limiting arrears to October 2014 might not be a brilliant idea; I’ll let Martin Williams go into detail.

I would strongly suggest anyone thinking about it holds off until Martin explains why. CPAG expect to issue JR any day soon.

As an aside I’m still hoping to collate appeal reference numbers to pass them up to HMCTS as they hope to deal with any outstanding strike out applications in one fell swoop. After my convo with Martin yesterday I think they should be struck out but it would still help CTS greatly if they could do it all at once. Hopefully something will go round NAWRA soon but in the meantime people can get me on here.

Hi
I have a conversion case (converted 2011 onto CBESA so missed out IRESA and premiums). My client’s arrears were paid but were limited to October 2014 section 27 reasons, so I had appealed that decision quite a few months ago back in 2017.

I’ve just had a letter from the Tribunals Service that I have to make representation within 14 days as to why the matter should not be struck out, otherwise they will strike it out.

I am trying to understand the points made in this thread by Martin/Dan - cant say I fully understand it.

Please could you explain what should be the next step in my case in the light of the JR?
Advice will be much appreciated.

Dan_Manville
forum member

Mental health & welfare rights service - Wolverhampton City Council

Send message

Total Posts: 2262

Joined: 15 October 2012

FerhanaBhogadia - 23 April 2018 09:49 AM
Dan Manville - 29 March 2018 01:58 PM

Now I don’t want to steal CPAG’s thunder however it probably, quickly, needs saying that appealing against these decisions limiting arrears to October 2014 might not be a brilliant idea; I’ll let Martin Williams go into detail.

I would strongly suggest anyone thinking about it holds off until Martin explains why. CPAG expect to issue JR any day soon.

As an aside I’m still hoping to collate appeal reference numbers to pass them up to HMCTS as they hope to deal with any outstanding strike out applications in one fell swoop. After my convo with Martin yesterday I think they should be struck out but it would still help CTS greatly if they could do it all at once. Hopefully something will go round NAWRA soon but in the meantime people can get me on here.

Hi
I have a conversion case (converted 2011 onto CBESA so missed out IRESA and premiums). My client’s arrears were paid but were limited to October 2014 section 27 reasons, so I had appealed that decision quite a few months ago back in 2017.

I’ve just had a letter from the Tribunals Service that I have to make representation within 14 days as to why the matter should not be struck out, otherwise they will strike it out.

I am trying to understand the points made in this thread by Martin/Dan - cant say I fully understand it.

Please could you explain what should be the next step in my case in the light of the JR?
Advice will be much appreciated.

In a nutshell…

R(IS)15/04  applies

The time limit for appealing against the conversion decision runs from the date of the conversion decision and the deadline to appeal has long since passed.

Considering the tone of your strike out letter I suspect the Judge dealing with it has seen this thread.

Would you message me the appeal ref? I’ve been asked to collate all these so they can deal with them all at once.

Thanks

FerhanaBhogadia
forum member

Senior WRO - Leicester City Council Welfare Rights Service

Send message

Total Posts: 45

Joined: 18 June 2010

I am still trying to get my head round what you both are saying.
Having looked at the decision R(IS)15/04 I’m not sure it applies to my client.

I sent in an ESA3 highlighting the IR premiums were missing, requesting IR elements be included from the date of conversion (2011) as ESA is one benefit etc
That was accepted and the original decision was revised to include IR element, but PAID only from Oct 2014, the DWP citing the LH case stating their hands were tied due to the anti test case rule. Thus the DWP have not refused to revise the original decision (which is what R(IS) 15/04 was about).

I appealed the the payability aspect of the revised decision ie you should not limit the arrears.
The letter gave appeal rights
The original decision has been revised once so there is no refusal to revise.

My grounds for appeal of the payability date is that earlier case law stated ESA is one benefit, should pay to date of conversion, and LH is not relevant and can be distinguished as its not a conversion case. I put in a Human Rights grounds too (without developing it in the SSCS1).

In these circumstances, I had proposed to respond to the Strike Out application by sending in a request to stay the proceedings (including striking out) pending the outcome of the forthcoming JR application by CPAG.
Can you explain to me why this proposed action would not be correct?

[ Edited: 25 Apr 2018 at 11:52 am by FerhanaBhogadia ]
AlexJ
forum member

Trafford Welfare Rights

Send message

Total Posts: 178

Joined: 4 July 2016

I think the argument goes that if the DWP have refused to revise on the grounds of official error (which they have; they are arguing it was ‘error of law’), then there is no right of appeal against that decision; the deadline for appealing runs instead from the date of the original decision (which will be back in 2012 or whenever the conversion decision was), a deadline which will now have been missed by some years.

The DWP have indeed revised the decision awarding ESA, from the LH October 2014 date (ie NOT on the grounds of official error), but you want them to revise specifically on the grounds of ‘official error’ in order to get the arrears all the way back to the date of conversion. They’ve refused to revise on the grounds of official error and this refusal is not appealable; see CPAG page 1286 (which cites R(IS) 15/04), 1279 and 1280. So the only way of disputing the decision is via JR, which is what CPAG are doing.

Someone please correct me if I’ve explained this incorrectly.

Which leaves the question of what exactly we should be doing, pending the outcome of CPAG’s JR, with cases where a client’s arrears have been limited to the date of LH in October 2014? Do we just wait for the outcome of the JR, or should we be advising clients to threaten JR proceedings in respect of their own cases?

Daphne
Administrator

rightsnet writer / editor

Send message

Total Posts: 3537

Joined: 14 March 2014

We were told at a stakeholder’s meeting - but this is not minuted anywhere - that if it was subsequently decided that backdating shouldn’t be limited which hopefully CPAG’s JR will do, then the DWP will have all the information on the system from the trawl to issue that backdating to all claimants who have missed out. But obviously this doesn’t carry any weight!

Martin Williams
forum member

Welfare rights advisor - CPAG, London

Send message

Total Posts: 769

Joined: 16 June 2010

Hi- in terms of what to do with existing cases:

1. If you have had a client whose arrears only went back to 21/10/2014 then:

a) you have 13 months to seek MR in any event.

b) it would be fine to wait until R(DS) v SSWP decided before filing the MR- if R(DS) v SSWP succeeds on all grounds then presumably the MR app would get arrears right back.

2. For those claimants who are already at the First-tier Tribunal, our view is that they should ask for their cases to be stayed pending R(DS) v SSWP. I explain why below (could use this as a cut n paste job in application to Tribunal in any case where strike out proposed).

Martin
————————-

1. In R(DS) v SSWP (case CO/1211/2017) an application for judicial review has been made on behalf of a claimant who was migrated to ESA in 2012 and in respect of whom the DWP have awarded the income related element only from 21/10/2014. The grounds are, in summary as follows:

a. Ground 1, the key issue between the parties, relates to whether the original decision ‘arose from an official error’ within the definition given by Reg 1 Social Security and Child Support (Decisions and Appeals) Regulations 1999 (‘the 1999 Regulations’), which in part implements s 27 Social Security Act 1998 (‘SSA 1998’):

i. if it did arise from an official error (as the Claimant avers), the whole of the error must be corrected, from when conversion originally took place;

ii. if it did not arise from an official error (as the Defendant avers) on the basis that it is an error of law which is shown to have been an error by virtue of a subsequent decision of the Upper Tribunal, the error can be corrected only from the date of the relevant ‘subsequent decision’ (s.27 SSA 1998)- LH v Secretary of State for Work and Pensions [2014] UKUT 480 (AAC), [2015] AACR 14.

2. Ground 2, assuming Ground 1 is not upheld, is that the relevant determination for the purposes of s. 27 SSA 1998 is not LH. PG v Secretary of State for Work and Pensions [2014] UKUT 0282 (AAC) (17 June 2014) makes the same three points which SK v SSWP says LH established (see PG, §4), and it did so four months before LH was handed down. So even if those points did need establishing by the UT they were manifestly not established as late as the LH case in October 2014. Note that in PG, the Defendant supported the appeal.

3. In R(DS) v SSWP, the Secretary of State has agreed with the claimant representatives (Child Poverty Action Group) a consent order transferring the case to the Upper Tribunal with directions then to follow on reasonable expedition. The parties now await that consent order being considered by the Administrative Court and the anticipated transfer of the case to the Upper Tribunal where it will be dealt with on an expedited basis and at a rolled up hearing (to consider permission and if granted the substantive claim).

4. If DS succeeds on ground 1, then R(IS)15/04 is authority for saying that the Tribunal will have no jurisdiction over these appeals and they should indeed be struck out (leaving the SSWP free to further revise for official error). R(IS)15/04 holds that the time for appealing in a case where official error revision is refused and instead a supersession takes place (as in these cases) runs from the date of the original decision (ie the conversion decision)-  the original decision was more than 13 months ago.

5. However, if DS fails on ground 1 but succeeds on ground 2 then the Tribunal in similar cases will be able to allow the appeal to the limited extent that the relevant section 27 case is PG and not LH and the claimant will gain arrears for the period 17/06/2014 to 20/10/2014.

6. It would be wrong for the First-tier Tribunal to strike out cases prior to decision in R(DS) v SSWP. Instead cases should be stayed pending the determination of that case.

Martin Williams
forum member

Welfare rights advisor - CPAG, London

Send message

Total Posts: 769

Joined: 16 June 2010

Alex- on this point:

The DWP have indeed revised the decision awarding ESA, from the LH October 2014 date (ie NOT on the grounds of official error), but you want them to revise specifically on the grounds of ‘official error’ in order to get the arrears all the way back to the date of conversion. They’ve refused to revise on the grounds of official error and this refusal is not appealable; see CPAG page 1286 (which cites R(IS) 15/04), 1279 and 1280. So the only way of disputing the decision is via JR, which is what CPAG are doing.

All good but the DWP have not revised the decision awarding ESA- they have superseded it- s.27 supersessions are effective from the date of a relevant determination (Reg 6(2)(b) and Reg 7(6) of the 1999 Regulations, and s 27 SSA 1998).

AlexJ
forum member

Trafford Welfare Rights

Send message

Total Posts: 178

Joined: 4 July 2016

Thanks Martin, that’s great and very useful.

Cheers

Alex

FerhanaBhogadia
forum member

Senior WRO - Leicester City Council Welfare Rights Service

Send message

Total Posts: 45

Joined: 18 June 2010

Martin Williams - 25 April 2018 12:50 PM

Hi- in terms of what to do with existing cases:

1. If you have had a client whose arrears only went back to 21/10/2014 then:

a) you have 13 months to seek MR in any event.

b) it would be fine to wait until R(DS) v SSWP decided before filing the MR- if R(DS) v SSWP succeeds on all grounds then presumably the MR app would get arrears right back.

2. For those claimants who are already at the First-tier Tribunal, our view is that they should ask for their cases to be stayed pending R(DS) v SSWP. I explain why below (could use this as a cut n paste job in application to Tribunal in any case where strike out proposed).

Martin
————————-

1. In R(DS) v SSWP (case CO/1211/2017) an application for judicial review has been made on behalf of a claimant who was migrated to ESA in 2012 and in respect of whom the DWP have awarded the income related element only from 21/10/2014. The grounds are, in summary as follows:

a. Ground 1, the key issue between the parties, relates to whether the original decision ‘arose from an official error’ within the definition given by Reg 1 Social Security and Child Support (Decisions and Appeals) Regulations 1999 (‘the 1999 Regulations’), which in part implements s 27 Social Security Act 1998 (‘SSA 1998’):

i. if it did arise from an official error (as the Claimant avers), the whole of the error must be corrected, from when conversion originally took place;

ii. if it did not arise from an official error (as the Defendant avers) on the basis that it is an error of law which is shown to have been an error by virtue of a subsequent decision of the Upper Tribunal, the error can be corrected only from the date of the relevant ‘subsequent decision’ (s.27 SSA 1998)- LH v Secretary of State for Work and Pensions [2014] UKUT 480 (AAC), [2015] AACR 14.

2. Ground 2, assuming Ground 1 is not upheld, is that the relevant determination for the purposes of s. 27 SSA 1998 is not LH. PG v Secretary of State for Work and Pensions [2014] UKUT 0282 (AAC) (17 June 2014) makes the same three points which SK v SSWP says LH established (see PG, §4), and it did so four months before LH was handed down. So even if those points did need establishing by the UT they were manifestly not established as late as the LH case in October 2014. Note that in PG, the Defendant supported the appeal.

3. In R(DS) v SSWP, the Secretary of State has agreed with the claimant representatives (Child Poverty Action Group) a consent order transferring the case to the Upper Tribunal with directions then to follow on reasonable expedition. The parties now await that consent order being considered by the Administrative Court and the anticipated transfer of the case to the Upper Tribunal where it will be dealt with on an expedited basis and at a rolled up hearing (to consider permission and if granted the substantive claim).

4. If DS succeeds on ground 1, then R(IS)15/04 is authority for saying that the Tribunal will have no jurisdiction over these appeals and they should indeed be struck out (leaving the SSWP free to further revise for official error). R(IS)15/04 holds that the time for appealing in a case where official error revision is refused and instead a supersession takes place (as in these cases) runs from the date of the original decision (ie the conversion decision)-  the original decision was more than 13 months ago.

5. However, if DS fails on ground 1 but succeeds on ground 2 then the Tribunal in similar cases will be able to allow the appeal to the limited extent that the relevant section 27 case is PG and not LH and the claimant will gain arrears for the period 17/06/2014 to 20/10/2014.

6. It would be wrong for the First-tier Tribunal to strike out cases prior to decision in R(DS) v SSWP. Instead cases should be stayed pending the determination of that case.

Thank you for the above.

Does this mean that if the JR by CPAG succeeds, for my case, the arrears would go back a further 4 months to 17/6/14 and not go back all the way to the date of conversion in 2011? (Seems unfair that claimants are missing out on what they should have had to live on).

Also Dan, what is the purpose of you collecting the case numbers regards this issue and what will you be doing with that information?

Martin Williams
forum member

Welfare rights advisor - CPAG, London

Send message

Total Posts: 769

Joined: 16 June 2010

Just dealing with this particular question:

FerhanaBhogadia - 26 April 2018 04:07 PM

[.....]

Thank you for the above.

Does this mean that if the JR by CPAG succeeds, for my case, the arrears would go back a further 4 months to 17/6/14 and not go back all the way to the date of conversion in 2011? (Seems unfair that claimants are missing out on what they should have had to live on).

If the JR succeeds in full - ie it wins on the first ground, then arrears go back all the way to date of conversion. The mechanism through which that is delivered in cases already at appeal stage will, because there is no right of appeal against refusal to revise for official error, be that the Tribunal strikes out the case and then the DM revises the decision.

If the JR fails on the first ground but the UT agree that the relevant case is the 17/6/14. In that case the mechanism by which this is delivered for a case already at appeal stage can be the Tribunal simply allowing the appeal to that limited extent.

Martin

Dan_Manville
forum member

Mental health & welfare rights service - Wolverhampton City Council

Send message

Total Posts: 2262

Joined: 15 October 2012

FerhanaBhogadia - 26 April 2018 04:07 PM

Also Dan, what is the purpose of you collecting the case numbers regards this issue and what will you be doing with that information?

I know you’ve seen the post on NAWRA Ferhana and thanks for your email but; for those who haven’t, these appeal cases are sat on our Regional Tribunal Judge’s desk. I bumped into him at a meeting the day before I discussed the case with Martin, he hopes to deal with them all at once. He asked me to try and collate any look alikes.

Thanks for everyone’s help.

 

From the other side
forum member

CRU/CARF-FIFE

Send message

Total Posts: 176

Joined: 22 April 2014

Leave to appeal to Court of Session for SK case has been granted by the Judge from the UT hearing.

Dan_Manville
forum member

Mental health & welfare rights service - Wolverhampton City Council

Send message

Total Posts: 2262

Joined: 15 October 2012

SSAC have announced another consultation.

https://www.parliament.uk/business/committees/committees-a-z/commons-select/public-accounts-committee/inquiries/parliament-2017/employmentsupport-allowance-17-19/commons-written-submission-form/

Can I suggest a game of consultation bingo? I’ll start us off with “lied”, “misled” and “smoking gun”

Daphne
Administrator

rightsnet writer / editor

Send message

Total Posts: 3537

Joined: 14 March 2014

NAWRA is doing a response to the consultation - we would really like you to complete this survey if you have time - https://www.surveymonkey.co.uk/r/RHYTCDG

Tom B (WRAMAS)
forum member

WRAMAS - Bristol City Council

Send message

Total Posts: 454

Joined: 7 January 2013

Daphne - 03 May 2018 08:35 PM

NAWRA is doing a response to the consultation - we would really like you to complete this survey if you have time - https://www.surveymonkey.co.uk/r/RHYTCDG

When do you need responses by Daphne?