ESA lots of questions

Some months ago I represented at one of the earlier ESA appeals.  The appellant was in prison so did not attend.  I argued that the appeal should go ahead and that there was sufficient evidence to make a determination.  The members agreed and proceeded to find that the appellant’s appeal should be allowed under the exceptional circumstances route.  Thus, the appellant was placed in a support group and leads me to the first question:  is it always the case that treatment under the exceptional circumstances is a gateway to a support group?  I suspect that it is, but I’m not sure.

Some months later, about 4, the assessment process began again following a new claim on discharge from prison.  For whatever reason, or reasons, the claimant failed to complete and return the ESA50 issued to him.  Time progressed and he was invited to, and attended at an appointment with a medical assessor.  Client awarded 6 points under mental health descriptors.  I helped him lodge an appeal which was heard a couple of weeks ago; some 14months after the appeal was lodged, but the length of waiting is not an issue and is bye the bye for now.  I asked that tribunal consider the exceptional circumstances route again as nothing had changed.  So off they went and found the requisite 15 points via Schedule 2 of the ESA Regs 2008.  Now I ask question 2:  will achieving 15 points under the route chosen by the tribunal mean that my client will not be placed in a support group, which I suspect he won’t, and that he will be invited to attend a Work Focussed Interview to consider steps to finding employment, which I suspect he will?

Some couple of days later I began to think that the tribunal may have erred in point of law in the following way:  They did not consider whether the appellant might be considered to satisfy the support group possibilities available under Section 3 of the ESA regs 2008.  Many questions arise from this statement.  Were the tribunal bound to consider the implications of Section 3?  I think that they were.  Were they erroneous in point of law by not doing, or, indeed, did they act procedurally incorrect thus inviting an application for setting aside of their decision.  I think that they did.

My thoughts then turned to the proposition that the tribunal might have been bound to consider whether or not the appellant might be considered to continue to be treated under the exceptional circumstances route.  This might be controversial but at the time of the hearing, and before the tribunal went on the award the 15 points under Schedule 2, he did not have 15points and theoretically could have been considered under exceptional circumstances.  The question arises as to whether the tribunal were bound to consider the exceptional circumstances route before the Schedule 2 route, or indeed did they have the authority so to do.  I suspect that they were so bound and that they did have the authority, but I could be wrong or one or both points.

It then struck me that the exceptional circumstances regs were fine when the only issues were whether someone was, or was not fit for work.  Now, however, there is an additional decision to make; whether a person is fit to follow some work related activity.  In the case above, the tribunal may have been under the impression that it was acting in the appellant’s best interests by awarding 15points.  Did they consider that by so doing they would place the appellant in the position of having to undergo Work Focussed Interview?  Should they have considered the routes to a support group before looking for points?

It may be of course that some or all of the above questions have been considered before and that my comment is worthless.  Any point or guidance gratefully received.

Thank you.

Patrick

I assume that originally the client was initially placed in the support group due to the tribunal making a decision on exceptional circumstances due to a substantial risk to mental health if found not to have limited capability (reg 35 (2)?

This position can therefore be reviewed by the department periodically or where there is a change in circs,or the department feel that a previous determination was made in ignorance as to some material fact.

Thus when they reviewed your client, they attended a medical and was awarded 6 points and appealed.

If you still thought the exceptional circs applied to the client you could have asked the Tribunal to consider this, although they should have considered this anyway, as they did not allow the appeal under this but went on to award the 15 points required they must have considered that he did not meet the conditions for exceptional circs. I undertsand from your posting that you did request this.

having considered exceptional circs, They were therefore only obliged to ascertain if he had limited capability for work, which they considered and allowed the appeal on this basis.

therefore my understanding is that it would be difficult to prove that the Tribunal had made an error in law unless exceptional circs were not considered. As the assumption behind ESA is that the majority of claimants if given the correct support are capable of some work, entry to the support group is only based on a demonstartion of a severe level of functional limitation.

not sure if this helps?

It is my understanding that a duty to consider the exceptional circumstances rules can only arise if the Tribunal does not find the points; they cannot be used to say “even if he doesn’t get the points he’s certainly going to qualify under the exceptional circs rules” and thus short-circuit the appeal by not looking at the descriptors at all. So if you find the points you don’t get as far as that.

I’m pretty certain there’s an UT decision on this point, which I’m sure someone will be able to point us all to.

As I understand it, there are “exemptions” which can bypass the need for testing against the descriptors; and then there are the “exceptional circs” (severe uncontrolled or uncontrollable life-threatening disease; or risk to the mental or physical health of any person) which should be considered only in the event that a person fails to satisfy the descriptors. This procedure is carried out for the WCA, and then if the claimant has LCW a similar but separate exemptions/descriptors/exceptional circs test is applied for LCWRA.

See ESA Reg 20 and Reg 35
http://www.cpag.org.uk/cro/wrb/wrb204/wca.htm

Out of interest, most if not all of the DWP submissions I’ve seen expressly ask at the end of their response:

“Should the tribunal decide that [claimant] does have LCW; I respectfully request that they decide whether or not [claimant] has LCWRA. If they determine that there is insufficient evidence, the tribunal is requested to refer the case to the DM for determination”

[edit: or, what Ariadne said]

Having spoken to you face to face, Patrick, we’ve clarified that the issue you were confused about was the exceptional circumstances.  There are 2 regs for this.  One is reg 29 which is about the risk if someone is found not to have limited capability for work, and puts the claimant in the Work Related Activity group.  The other is reg 35 which is about the risk if someone is found not to have limited capability for work related activity (catchy!) and puts the claimant in the support group.

My view is that there may be some mileage in requesting a set aside/UTT if the tribunal didn’t look at whether the claimant could be put in the support group.  Every Secretary of State submission that I’ve seen asks them to look at this if they find the claimant does qualify for ESA.

As stated by my learned colleague, its a separate test.

Is the bar/threshold for LCfWRA higher or lower than LCfW?

Presumably its harder to do paid work than take part in Work Related Activity?

Then again is it the same as being at work? Don’t turn up don’t get paid.

Or do you have more protection at work under flexible working, parental rights and contractual terms? And less under WRA2007?

Welfare Reform Act 2007

13 Work-related activity   (2)Regulations under this section may, in particular, make provision—
(e)for securing that the appropriate consequence follows if a person who is subject to such a requirement—

(i)fails to comply with the regulations, and

(ii)does not, within a prescribed period, show that he had good cause for that failure;