Migration appeals

I have a couple of these appeals coming up in the next week or two.

One of my arguments is that JCP should have included the IB50 and IB85 from his last PCA.

The response from JCP included that the papers are not relevant to the decision as his IB was assessed for the conversion and therefore the decision was made using different descriptors and regs; that although the papers may show his condition has not changed or even have worsened, the assessment and benefit system has changed.

My argument is that the ESA decision supersedes the Incapacity Benefit decision and therefore the last IB assessment is relevant in showing how they reached the decision that he was unfit for work.  Also that although the descriptors have changed and some WCA descriptors have been removed altogether, it is still relevant to see how he was assessed at the PCA.  For next week’s appeal, this is my only hope as, on the papers I have, including a letter from his GP, the appeal will almost certainly fail.

Whose reasoning is correct?

Yes, I understand that.  I still believe the IB50 and 85 contain relevant information in relation to superseding the IB decision.

I find that these old documents often no longer exist, as some clients have not had an IB medical for 3-4 years or more (I have come across client’s who have not had a medical assessment in over 10 years).

If they do still exist, the information they contain may be so outdated to be of little value to the new hearing. I have found tribunal panels pay little attention to old IB50’s or old ESA 50’s and are only interested in the current version.

I agree with you Val . 

The outline of of our appeal letters in the transfer cases will contain a request to be send the IB forms and also the IB113’s received from GP

if nothing else it will show how long a claimant has been off and in many cases ,proof of events that may have made conditions worse over the years
  Also ,I believe that it would still stand for something if the person had been scoring high points in the PCA as some of the descriptors are not very different   and as Benefits and work tells us, some of the descriptors that were worth only 1 point in the PCA could now be worth 15 points in the WCA e.g. the awareness of danger/accidents
Other aspects maybe record of how frequent panic attacks we as that is also a drop down line in the IB 85 and that should support the “overwhelming fear ” aspect

Away from individual clients ,having access to reports on claimants who may have had very high scores under the PCA will highlight how many people who were found to be very incapacitated in a so called objective assessment ,are affected

If they are now assessed as not passing than that evidence can be more potent than when you can only show evidence or opinion of what many would like to dismiss as evidence of over sympathetic GPs or the claimant putting his doctor under pressure to obtain supportive opinion etc.

I think question will be if they will actually provide bearing in mind that we see a lot of current ESA bundles that do not even have the previous ESA 85 and if we will have to go to Upper Tribunal about it

Hi Val

Martin was on the look out for IB > ESA submissions… could you be of assistance?
See this thread http://www.rightsnet.org.uk/forums/viewthread/1572/

Chaos

I’m not so sure they’ve covered everything in these ‘conversion rules’; - hurried legislation and DM’s going at breakneck speed to get everyone on ESA in no time at all is a recipe for mistakes.  These cases are only just filtering through and one is a client who is currently on long terms ICB and has been sent the dreaded ESA 50.  I’ve decided to challenge it and have sent the following letter to ATOS in reply to their request; - with a copy to the DWP and also one lodged with the local MP who is aware of our concerns over people being dragged through the ESA mill.  Well, if you don’t ask you don’t get; - I’ve explained to my client that we’re checking out the rules before filling in forms and he’s happy to go along with it.  There’s an obvious need to keep an eye on the reply by date but it seems reasonable to request a clear explanation over precisely which is the ‘prescribed’ form before it’s filled in. 

I’ll see how it goes.
_____________________________________________________________________________________________

The letter is phrased as follows:

Incapacity Benefit/Employment & Support Allowance Conversion

We write on behalf of the above client and an authorisation is enclosed for us to correspond on his behalf. 

Mr XXXX is an existing incapacity for work claimant who has been assessed under the personal capability rules.  He has long term mental health problems and we note that you have sent him an ESA 50 questionnaire for completion and return by the XX 2011.

We are aware of the conversion process from IB to ESA and the provisions of the Employment & Support Allowance, (transitional provisions, Housing & Council Tax Benefit) (existing awards) Regulations 2010 and we should make it clear that we are seeking clarification on a point of law over the use of the ESA 50 for an existing incapacity claimant who still remains subject to the Personal Capability Assessment until such times as his existing award has been correctly superseded or revised in accordance with sections 9/10 of the Social Security Act.  This request for clarification should not be read as an indication that our client is refusing to cooperate in the conversion process, he is merely asserting his rights to ensure you are following the correct legislative process.

Given the time frame for return of the form, time is of the essence and we would therefore urge you to reply as a matter of urgency so that we can advise our client without any risk of loss of benefit by virtue of non-return of the ‘relevant’ questionnaire.

Could you therefore please clarify the specific legislation which requires our client to complete and return an ESA 50 rather than the IB50 as the ‘prescribed’ form when he remains subject to personal capability assessment until such times as a valid supersession has taken place.

We understand from our research into this, that the conversion process is not automatic and is being done on a case by case basis as migration takes place.  We note from an official Secretary of State response to a report by the Social Security Advisory Committee that the phasing of these migrated claims (see paragraph 14 of the report) recommends that migration will take place in accordance with the healthcare professional’s review date in so far as a prognosis of when the claimant’s condition is expected to have changed.  If this is the case could you please clarify when the last healthcare professional last made such a prognosis?

We are concerned that there may be an omission in the legislation and that until a valid supersession has taken place, the correct form which our client should be completing remains the IB50 as a pre-requisite to conducting a personal capability assessment, if indeed it is appropriate to review our client’s claim at all.

You will appreciate that our client could be disadvantaged by his claim being migrated to Employment & Support Allowance and however much Parliament may wish to migrate all claimants in as short a time frame as possible, you will appreciate it is our client’s absolute right to ensure that the process is carried out according to the right and valid legislative process.

We therefore await a full response setting out all relevant law so that we can be sure due process is being followed.  We would also be grateful if you could supply copies of all the letters sent out to our client in connection with this conversion so that we can be sure he has been made fully aware of his statutory rights to dispute a decision of the state which is not automated and therefore is individual to his claim; - with full rights of appeal and protection being given to him until an appeal is determined. 

You will appreciate that this is a new process to us all and that quite often the legislator’s omit to draft the regulations properly which open up the possibility that decisions may be erroneous in law, we are therefore seeking early stage clarification so that we can be assured our client’s claim (and others) are being converted in the proper way.

We look forward to hearing from you as soon as possible.
_______________________________________________________________________________________________________

I’ll expect the usual standard one sentence response, but given that so many problems emanate from the completion of the ESA 50 form it seems worth a shot to challenge whether it’s right to send it out before a non-automated supersession has taken place.

Can but try.

Just to add a bit more to this hot topic.  I don’t see that the conversion process alters the original concept established in case law (which I’ll track down) that in an Incapacity claim, it is originally for the claimant to prove his or her incapacity, thereafter the burden of proof rests upon the Secretary of State to show that the claimant has ceased to become incapactated.  Given that the conversion rules do not create a new claim, it is in my view still incumbent on the Secretary of State to provide evidence establishing their case; - surely this has to include previous decisions, IB50’s, IB 85’s, IB 113’s, previous Tribunal decisions and PCA score sheets.  It all throws light on the claimant’s condition and how it may have improved or deteriorated over the passage of time.  In an appeal case, I’d certainly be minded to apply for a direction for it all to be produced.

Will be very interested to see how this one pans out. I finally have my first conversion appeal. I’m quite chuffed, actually, as I was feeling left out!

Thank you very much for all your responses: very helpful.  As it turns out, the first client had never had an assessment so my first appeal on this will be tomorrow so I’ll let you know what happens.

I’m not following this argument.

I cannot see how a previous PCA and the CoC applies?

There is an act and regulations in force.

The ‘shocker’ is that the regs are ex-post facto. This is the ‘new’ bit in my limited experience.

My thoughts (which may be wrong) were that previously benefit claimants were left alone and allowing for natural wastage to fall off the books and statistics.

There could be a HRA argument and whether Parliament privilege applies?

But there is case law to suggest it does.

I don’t understand the argument either.  The mechanism to convert an award of ICB to one of ESA is a power contained in schedule 4 of the Welfare Reform Act 2007.  I don’t think this requires a separate supersession decision under the D&A Regs.

However, let us suppose it does. Then one merely supersedes the operative ICB outcome decision under reg 6(2)(a) on the basis of a change of circumstances.  The relevant change being a change in the law, i.e. the conversion regs enacted under schedule 4.  If a change in the law allows conversion then that can be a ground for supersession as it is a relevant change of circumstances.

The fact that there has been no determination that a person is not incapable of work is a red herring.  It is what it is, a determination and not a decision, and if the ICB outcome decision is capable of being converted, with or without a reg 6 supersession, then the previous determination that a person is incapable of work just withers on the vine.

We’ve been here before, when ICB replaced Invalidity Benefit and although that pre-dated the regime of the SSA 1998 the previous adjudication regs required proper statutory review of award decisions in the usual run of events.

It’s no so much an argument, just clarifying a point.

On the issue of supersession, I don’t see it as the same situation when Invalidity Benefit was replaced by Incapacity Benefit in 1995.  There was under those changes, a much more robust transitional protection arrangement protecting those claimants who had pre-existing entitlement.

Schedule 4 of the WRA seems to be full of the word ‘may’, it is not a ‘clear as crystal’ definition of the process; - I suspect the consequential ammendments will be similarly loosely worded. 

The process of ‘conversion’ does not seem to be a purely legislative supersession because it is being conducted on a case by case basis where it is the claimant’s expected date of improvement which seems to be the means of identifying when the process of supersession is triggered.  This seems suggestive of a supersession being triggered on the basis of the claimant’s individual circumstances, rather than upon a purely legislative change.

Until a valid supersession has taken place (either in the legislative or individual claim sense) an IB claimant will remain subject to the process of assessment as per the PCA and the law as it stood at their last awarding decision.  If this is correct, the correct form for any re-assessment remains the IB50 rather than the ESA 50.  The IB50 is the prescribed self - assessment form related to the claim.

On the basis of this thinking, it seems appropriate to challenge the DWP where the claimant is called for re-assessment.  To me it’s quite simply the wrong form for the benefit being claimed.  That’s why I’ve chosen to challenge it with DWP and ATOS (who sent it out).  I’ve also copied it to our local MP who has asked for a full explanation to be provided as a matter of urgency.  It’s a question of challenging something which doesn’t seem right and asking the DWP for a full explanation as to the relevant law which enables them to send out an ESA 50, I can but wait and see what they say.  If their response is cogent then I’ll happily help my client complete his ESA 50.

On the question of previous evidence including PCA’s, I think there is a relevance, particularly in a long term IB claim in asking for this to be included in the appeal papers, it is likely to shed some light on the claimant’s condition and to be of help to the Tribunal.  In the good old days of IB appeals, Tribunals were generally happy to issue directions upon request for the evidence to be made available.  If it’s lost by the DWP then the Tribunal would have to proceed on the basis of what’s available. The claimant may possess some evidence of his own which could help provide a history as to his or her problems with individual activity descriptors.  A string of previous PCA’s and other medical evidence could also prove useful in establishing a worsening in the claimant’s condition over the course of time.

In an IB case, at the outset of the claim, it is incumbent on the claimant to prove his incapacity for work, thereafter the burden of proof rests upon the Secretary of State to show that the claimant has ceased to be incapable of work.  A string of previous PCA’s could be a very useful instrument in establishing this.  Take, for example, the case of a long term IB claimant who says he/she has mental health problems.  If there were four or five previous PCA all confirming MH problems, it would be very useful in evidence when disputing a recent assessment where the HCP says there are no such problems.

All IMHO of course, can but wait and see how it pans out.

Re -  Burden of proof in IB cases

R(S)/13/54 & R(S)13/52 restates that at the beginning of the claim, the claimant must prove incapacity (i.e. by claiming and providing a medical certificate).

reviews

R(S)/3/90 restates that at the review stage, it’s the decision-maker who must show that the claimant is not entitled.

Re -  Burden of proof in IB cases

R(S)/13/54 & R(S)13/52 restates that at the beginning of the claim, the claimant must prove incapacity (i.e. by claiming and providing a medical certificate).

reviews

R(S)/3/90 restates that at the review stage, it’s the decision-maker who must show that the claimant is not entitled.