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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

WCA Appeal - No example of WRAG activities in bundle. 

wbamic
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Mind in Croydon

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Last week I repped at work capability assessment UC appeal.  The bundle was really slim and arrived less than a month after the sscs1 went in.  In the bundle there was no examples provided of work related activity (or any reference to what the clients conditionality has actually been since being found fit for work, not sure if that is actually that significant)

In passing in my submission I mentioned that no examples were provided and we might want to imagine what impact being subjected to some of the more involved types of WRAG might have on the client.  I also mentioned this verbally at the hearing and in the absence of any examples in the tribunal papers that we might want to consider the possibility of what the toughest types of WRAG might look like.  The Judge mentioned that they were very aware of where I was going with this.  and that they are ‘use to seeing papers without work related activity examples included’

The decision arrived this morning and he has been placed in WRAG on substantial risk grounds. 

In light of IM and the requirements to provide examples of WRAG, would a set aside seem the most straightforward way forward?  I am wondering because it was made clear by myself that I would have concerns about the risk of high intensity WRAG that the tribunal could say that they were aware of how intense WRAG can be in theory and so this was fully consider on the day despite examples not being provided in the papers? 

 

Elliot Kent
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I don’t really see this as a matter for a set aside. You were able to make your arguments about the substantive LCWRA and the significance of the lack of IM information and the Tribunal rejected those arguments. I don’t think that the judge considering the set aside request would be particularly impressed by getting the same arguments re-packaged as a set aside request.

I think that - assuming your client doesn’t just want to stick with the result - the approach is to get an SOR and see where that takes you. The reg 35 caselaw is a bit of a minefield and there is a fair chance that there will be some reasonable appeal grounds particularly given the absence of the IM info from the papers.

wbamic
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Hi Elliott , thank you for the guidance.  I wasn’t sure if the sure if the lack of examples of WRAG in the bundle was an open goal and just wanted to clarify that point which i think you have. 

As you say I am sure that the IM issue will be relevant if the client wants to take this further.

Elliot Kent
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wbamic - 16 February 2021 03:41 PM

Hi Elliott , thank you for the guidance.  I wasn’t sure if the sure if the lack of examples of WRAG in the bundle was an open goal and just wanted to clarify that point which i think you have. 

As you say I am sure that the IM issue will be relevant if the client wants to take this further.

I think that maybe if the client had not been represented in the hearing and therefore the lack of IM information had not been raised at all then you could maybe make the argument but I think the fact that the arguments were raised and rejected is what kills it. The Tribunal’s reasons could, in principle, justify the approach it took and I think a Judge would be reluctant just to short circuit all that and set the decision aside without seeing the reasons.