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ESA failure due to CA, but not because they think she’s capable

 

HFCAB
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Would be grateful for any thoughts here.

I have screenshotted the tail end of the statement of reasons but basically because client is a carer they’ve said she doesn’t meet the criteria for ESA. I understand someone caring and therefore questioning their capability, but they clearly understand that the caring is prompting etc. They have said that because she’s a carer, she couldn’t take part in WRAG, and therefore can’t get ESA (?!)

Am I going mad or is this not how the law works at all and therefore it’s a glaring error in law?

 

     

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John Birks
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It looks good and top marks for looking into the issue but….

s11 of the WRA 2007 is with regard to WFHRA

http://www.legislation.gov.uk/ukpga/2007/5/section/11/data.pdf

Suspended July 2010 for two years then suspension extended again for three or five - can’t remember - but not heard of since.

Has it started again?

Or have I got the wrong end? again?

     
John Birks
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Revoked

The Employment and Support Allowance (Work-Related Activity) Regulations 2011

Revocation of regulations relating to work-focused health-related assessments
11.  The following regulations of the ESA Regulations are revoked—

(a)regulation 47 (requirement to take part in a work-focused health-related assessment);
(b)regulation 48 (work-focused health-related assessment);
(c)regulation 49 (notification of assessment);
(d)regulation 51 (taking part in a work-focused health-related assessment);
(e)regulation 52 (deferral of a requirement to take part in a work-focused health-related assessment); and
(f)regulation 53 (failure to take part in a work-focused health-related assessment).

http://www.legislation.gov.uk/uksi/2011/1349/contents

     
HFCAB
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Sorry for not following. Does that mean it no longer applies and therefore it is an error in law?

     
BC Welfare Rights
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I had to check the date but it’s not April Fool’s day after all.

Poppycock.

     
Paul_Treloar_AgeUK
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Completely incoherent decision.

Basic rules of entitlement to ESA under WRA 2008:

(3)The basic conditions are that the claimant—

(a)has limited capability for work,

(b)is at least 16 years old,

(c)has not reached pensionable age,

(d)is in Great Britain,

(e)is not entitled to income support, and

(f)is not entitled to a jobseeker’s allowance (and is not a member of a couple who are entitled to a joint-claim jobseeker’s allowance).

Rules about work from ESA regs 2008 state:

A claimant who works to be treated as not entitled to an employment and support allowance

40.—(1) Subject to the following paragraphs, a claimant is to be treated as not entitled to an employment and support allowance in any week in which that claimant does work.

(2) Paragraph (1) does not apply to—

(c)domestic tasks carried out in the claimant’s own home or the care of a relative;

     
Elliot Kent
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HFCAB - 26 July 2018 01:14 PM

Am I going mad or is this not how the law works at all and therefore it’s a glaring error in law?

This is bonkers and there are a dozen reasons why.

The most straightforward is this. Reg 3(2) of the ESA (WRA) Regulations 2011 provides that a carers allowance claimant cannot be required to undertake work-related activity at all. So the “problem” that the Tribunal has identified will simply never arise.

 

     
Paul_Treloar_AgeUK
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Elliot Kent - 26 July 2018 01:53 PM
HFCAB - 26 July 2018 01:14 PM

Am I going mad or is this not how the law works at all and therefore it’s a glaring error in law?

This is bonkers and there are a dozen reasons why.

The most straightforward is this. Reg 3(2) of the ESA (WRA) Regulations 2011 provides that a carers allowance claimant cannot be required to undertake work-related activity at all. So the “problem” that the Tribunal has identified will simply never arise.

 

Well spotted Elliot, I thought there was something like that as well but couldn’t find it.

     
past caring
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To be clear. A person in receipt of CA can be required to take part in a work-focused interview. They cannot be required to take part in work-related activity.

As Paul says, the issue for the tribunal was solely whether the claimant met the conditions of entitlement for ESA - whether she scored sufficient points for activities under the WCA or should be treated as having limited capability for work. If the answer to either of those questions is ‘yes’ she is entitled to ESA. And that is an end of it.

Any disallowance or sanction that might follow from a failure to take part in a WFI is an entirely separate matter and would require a separate (and appealable) decision that she had in fact failed to take part without good cause. This is so poor I wonder where they get these clowns from? Are they trying to compete with DWP submission writers for ineptitude? Even if she could be compelled to take part in WRA (and she can’t) it is a matter for the work coach what exactly WRA will actually amount to - in many cases what it actually amounts to is a 10 minute phone call every 6 months.. Jesus wept.

     
John Birks
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HFCAB - 26 July 2018 01:42 PM

Sorry for not following. Does that mean it no longer applies and therefore it is an error in law?

Sorry if I was unclear - I was trying to be quick before nipping out to a hearing.

Yes it no longer applies, and could never apply in any case as the other replies address.

The well done was to the tribunal for innovation in looking for new reasons to say ‘no.’

     
Jon (CHDCA)
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I really don’t think this is what the decision is trying to say, but just in case ...

... if para 22 means that she didn’t score on the functional descriptors, and para 21 means that she can’t qualify under reg 29 either, because she is in any case excused from work and therefore no risk to her health can arise, then take a look at cases like CE/2207/2012, which concern the context in which the risk to health should be assessed.

On its face though, the decision is making a rather different (and much more misguided) argument, and would be a worry for any other CA claimants who might cross that panel’s path.

     
Joanna
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Slightly off topic but it seems being in receipt of CA is a curse for some claimants. This is the sinister excerpt from DWP ‘s submission, following my client’s PIP appeal: “Although X has identified a high level of personal restrictions, she is entitled to Carer’s Allowance.  To be entitled to Carer’s Allowance a person must provide at least 35 hours of care to another disabled person each week. The Tribunal may wish to explore this further.”
Generally a valid argument if someone does not understand the wide variety of caring tasks, but I hoped the Tribunal would. Now, from the posts above, I am not so sure.

     
Jon (CHDCA)
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Joanna, this previous thread may be of interest:
https://www.rightsnet.org.uk/forums/viewthread/10581/

     
Joanna
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Super helpful.
That thread is from 2016 and quotes case law….and DWP are still using that cut and paste….Christ :(

      [ Edited: 27 Jul 2018 at 02:01 pm by Joanna ]
HFCAB
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Thank you all for the help and sanity check.

     
past caring
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Having thought some more about this, I think this is one of those rare cases where there should be a separate complaint made (alongside the LTA application) to the Regional or District Tribunal Judge. The decision shows such little grasp of the relevant law that the tribunal judge really ought not to be deciding appeals until, at a minimum, they have been made to go through their training course again.