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Best arguements for reg 35

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Mr Finch
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Benefits adviser - Isle of Wight CAB

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I think I need to start addressing this better in my submissions. Good information about the JC+ Offer, which does seem to at least be capable of being mandatory. Until a while ago they were admitting that interview practice sessions and cold-calling training was possible: ‘it is a general principle of law that your earlier statement….’

Vonny
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Welfare rights adviser - Social Inclusion Unit, Swansea

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I have just received permission to appeal to the UT:

The Judge has given these reasons:

referring to 13(7) of the welfare reform act 2007 - In this part ‘work-related activity’, in relation to a person, means activity which makes it more likely that the person will remain in work or be able to do so.

Judge then says ‘in my provisional view, it is arguable with realistic prospects of success that, at least some of the activities on the ‘soft skills’ list do not actually amount to work-related activity because the link between the activity and the world of work is so tangential that any effect it might have on the person remaining in work, or being able to remain in work, is so insignificant as to be trivial (or, as lawyers say, de minimis).’

case management directions then say it is one of a block of cases raising similar issues and further directions will be given by the registrar managing the block - I’ve not had this before, what is likely to happen next?

past caring
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Welfare Rights Adviser - Southwark Law Centre, Peckham

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Does the UT Judge’s surname begin with a W, perchance?

My case at the UT is about reg. 35 and the DWP’s (non) compliance with IM in its practice of supplying only the list of less demanding WRA in the Jobcentre Plus Offer to tribunals. Previous directions have suggested linking it with other reg. 35 cases for an oral hearing. But my understanding after the last round of subs is that those cases (like yours) are about something a little different - whether some of the less demanding WRA in the Jobcentre Plus Offer can properly be described as WRA at all. So mine and those may not be linked. And I’m not sure mine will go to oral hearing, though I’ve asked for one.

As for what happens next? In this type of situation, particularly where an oral hearing may be in the offing, it’s usual for the UT to offer to put the reps/appellants in lookalike cases in touch with one another - this is usually done via the registrar. From the UT’s perspective it hopes to achieve more focused arguments and to avoid duplication.

I’ve not really considered the ‘is it actually WRA?’ argument. At first sight it might appear counterintuitive - why would one want to have more onerous WRA imposed on claimants? But I take it that the argument being run is that some of the less demanding WRA isn’t properly speaking WRA, so the claimant should be deemed to satisfy reg. 35 (2)? Or is it that reg. 35 (2) is effectively being undermined?

Vonny
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Thanks Past-caring
The Judge’s name begins with a P and I was using the same argument as you over IM and only using half the list.
However I loved the Judge’s reasoning on the ‘soft skills’ list and thought it would be worth sharing as an argument for others to use.
Cheers Vonny

chrisorr
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Moneymatters Govan

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reg35 Upper Tribunal only a summary but UT judge finds no problem in principle.

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BC Welfare Rights
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past caring - 08 March 2019 05:27 PM

I’ve not really considered the ‘is it actually WRA?’ argument. At first sight it might appear counterintuitive - why would one want to have more onerous WRA imposed on claimants? But I take it that the argument being run is that some of the less demanding WRA isn’t properly speaking WRA, so the claimant should be deemed to satisfy reg. 35 (2)? Or is it that reg. 35 (2) is effectively being undermined?

I have tried running both those arguments simultaneous in the past but the FTT has never engaged with it at all so I am very happy that the UTT is now looking at it. The other thing I have encountered along these lines is the DWP stating that the WRA required includes things like continuing to engage with drug and alcohol services or mental health services. As these services are not funded by or controlled by the DWP I have argued that this cannot be genuine WRA either. No reputable service like this that I know would accept referrals on the basis of mandation from the Jobcentre or report back whether people are attending and engaging or not, so this can’t be genuine WRA either.

Paul Stockton
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I don’t know if this will be of any help, but it’s an extract from a submission I did recently. It’s very simple compared to Simon’s - perhaps too simple - but the client did win before the FtT, and on the papers.

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ClairemHodgson
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i like that, addresses the main point….

past caring
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I’m reluctant to criticise others’ work. And whilst there’s much I’d agree with in Paus17’s sub, I’m not sure it really does fully address the main point (assuming, that is, we are talking about a reg. 35 route to the support group).

1. With respect to the Court of Session, the lead case on reg. 35 and work-related activity is IM. And whilst that does hold that the purpose work-related activity is identifying those who might be capable of returning to work at some point in the future and assisting them with the skills that might enable them to find and retain employment, it is equally clear that it holds that the purpose of reg. 35 is to provide a safety net for the most vulnerable - i.e. those for whom, as the legislation itself expressly states, work-related activity might prove a substantial risk to their health.

2. Whilst some of the work-related activity may be pointless and futile, that does not mean that it would pose a risk to the health of a person engaging in it. For reg. 35, it is crucial to be able to argue why work-related activity is likely to pose such a substantial risk.

Which brings me on to the misgivings I have about the ‘some of the soft skills WRA in the Jobcentre Plus Offer cannot really be termed WRA in respect of the 2007 Act” argument. That may be so, but what of it? It does not follow that activity poses a substantial risk…...

London Tribunal Advocate
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I’m really intrigued by this argument and find it enormously interesting that 1) A District Judge has identified this as a potential error of law and 2) That there is a block of cases being established to test the point.  This says to me that at the very least permission ought to be granted to appeal in such cases.  And whilst it may be correct that the activity itself does not pose a substantial risk, if it is not something that can actually be considered work related activity, then its a moot point.  The tribunal has to look at the risk to appellant from work related activity.  Not any basic task that the DWP try to pass off as work related activity.

past caring
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Permission has already been given by the UT - there are a number of cases that may be linked with mine (which is on the SoS’s failure to provide the full Jobcentre Plus Offer list in mine and other appeals).

I think there are some potential problems with the argument (though as I say, I’ve not read the arguments put in the other cases, so that may be down to misunderstanding on my part) both in terms of the argument itself and likely potential consequences long term if it succeeds. But I’m a little reluctant to go into them in any depth on here, in part because it’s an open forum, viewable by others who we might not wish to see our discussions…..unless other members have a different view? There’s also the fact that any meaningful discussion probably needs to involve those reps who are making the “is it actually WRA?” argument at the UT.

Paul Stockton
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past caring - 25 March 2019 01:51 PM

I’m reluctant to criticise others’ work. And whilst there’s much I’d agree with in Paus17’s sub, I’m not sure it really does fully address the main point (assuming, that is, we are talking about a reg. 35 route to the support group).

1. With respect to the Court of Session, the lead case on reg. 35 and work-related activity is IM. And whilst that does hold that the purpose work-related activity is identifying those who might be capable of returning to work at some point in the future and assisting them with the skills that might enable them to find and retain employment, it is equally clear that it holds that the purpose of reg. 35 is to provide a safety net for the most vulnerable - i.e. those for whom, as the legislation itself expressly states, work-related activity might prove a substantial risk to their health.

2. Whilst some of the work-related activity may be pointless and futile, that does not mean that it would pose a risk to the health of a person engaging in it. For reg. 35, it is crucial to be able to argue why work-related activity is likely to pose such a substantial risk.

Which brings me on to the misgivings I have about the ‘some of the soft skills WRA in the Jobcentre Plus Offer cannot really be termed WRA in respect of the 2007 Act” argument. That may be so, but what of it? It does not follow that activity poses a substantial risk…...

 

Past caring is quite right in principle in his critique here. In this case it was possible to argue that even undemanding WRA would be detrimental, partly because of its very futility. But it depended on the client having a particular mix of conditions. It is possible to imagine a client who has LCW, doesn’t meet any schedule 3 descriptors, for whom all actual or imaginable WRA would be futile, but who could undertake any of the WRA without substantial risk to themselves or others. Where do they fit in the ESA scheme? The real answer, I think, is that they don’t fit - it’s a logical weakness in the scheme. As advisers I think we always have to argue that there is a reg 35 risk, in the hope and expectation that tribunals will not want to consign appellants to limbo.