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

esa and mr

Vonny
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Does the new high court decision mean that from today if found fit for work on esa you can go straight to submitting an appeal and can be paid pending appeal, or do new regs or an actual useful declaration from Coffey have to happen first?

Martin Williams
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Vonny - 24 July 2020 02:39 PM

Does the new high court decision mean that from today if found fit for work on esa you can go straight to submitting an appeal and can be paid pending appeal, or do new regs or an actual useful declaration from Coffey have to happen first?

My reading of it is that a claimant who, once they appeal would get ESA pending appeal, can go straight to appeal and does not need MR as reg 3ZA is unlawful (and hence of no effect) when applied to them. The s.12(3A) powers to prescribe situation in which appeal right does not exist until revision considered has not been exercised in respect of that decision (as the attempt to do so was unlawful) and there is an immediate right of appeal.

I think that a claimant wishing to test this would be well advised to file an MR request at same time as they file their appeal (no harm in doing so and protected in case I am wrong) and send in another appeal form once the MR is issued.

Possibility the SSWP will legislate to simply say that ESA is payable whilst MR pending in same circumstances as whilst appeal pending - at that point then reg 3ZA would be lawful again I think.

Have to say well done to this claimant acting in their own name- in a case I had considerable worries about which the judgment shows were not borne out.

Dan Manville
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Martin Williams - 24 July 2020 03:55 PM

Have to say well done to this claimant acting in their own name- in a case I had considerable worries about which the judgment shows were not borne out.

Seconded.

Vonny
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Welfare rights adviser - Social Inclusion Unit, Swansea

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Martin Williams - 24 July 2020 03:55 PM
Vonny - 24 July 2020 02:39 PM

Does the new high court decision mean that from today if found fit for work on esa you can go straight to submitting an appeal and can be paid pending appeal, or do new regs or an actual useful declaration from Coffey have to happen first?

My reading of it is that a claimant who, once they appeal would get ESA pending appeal, can go straight to appeal and does not need MR as reg 3ZA is unlawful (and hence of no effect) when applied to them. The s.12(3A) powers to prescribe situation in which appeal right does not exist until revision considered has not been exercised in respect of that decision (as the attempt to do so was unlawful) and there is an immediate right of appeal.

I think that a claimant wishing to test this would be well advised to file an MR request at same time as they file their appeal (no harm in doing so and protected in case I am wrong) and send in another appeal form once the MR is issued.

Possibility the SSWP will legislate to simply say that ESA is payable whilst MR pending in same circumstances as whilst appeal pending - at that point then reg 3ZA would be lawful again I think.

Have to say well done to this claimant acting in their own name- in a case I had considerable worries about which the judgment shows were not borne out.

Thanks Martin

Can people post if this approach is successful?

Daphne
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With thanks to Michael, the claimant, who has emailed us to say -

Just to let you know DWP will not be appealing R (Connor) v Secretary of State for Work and Pensions. We have settled all outstanding matters. So advisers should be able to use my case as settled case law. I hope welfare rights community will take up the baton and apply my case to other benefits. It potentially has wide implications. As far as I am aware this is the first time in a UK court that financial disadvantage has been held to be an incompatible hindrance to one’s article 6 convention right. Although not in the judgement, Justice Swift accepted a submission that the very act of a minister deciding to lay a regulation can be unlawful, if that reg is ECHR incompatible There is also no “manifestly without reasonable foundation’ barrier to A6 unlike A14 that most welfare benefit JRs focus on. Anyway that’s for the welfare rights community to take up

Vonny
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Welfare rights adviser - Social Inclusion Unit, Swansea

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Daphne can you send him our thanks and respect

Andyp5 Citizens Advice Bridport & District
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Vonny - 31 July 2020 10:20 AM

Daphne can you send him our thanks and respect

Absolutely!

Ros
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Daphne off today, but I’ll pass your comments on to Michael :)