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

UC WCA appeal bundles: a rant!

Dan Manville
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Greater Manchester Law Centre

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I’m just prepping a WCA appeal for 2pm hearing and I’ve come across something that angered me the first time I saw it.

In response to all the issues raised in IM, they’ve supplied an excerpt of KC & MC describing how WCs try to start the JCP offer light and work up to the more onerous WRA.

That is dumped in as mitigation for the fact they can’t supply evidence of the activities as required by IM It completely misrepresents Judge Wright’s findings in KC & MC and I’ve got a bit hot under the collar!

It’s just paras 48 & 116 of the decision.

Does this happen often? Even up north?

[ Edited: 24 Mar 2022 at 03:45 pm by Dan Manville ]
Andyp5 Citizens Advice Bridport & District
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Dan Manville - 24 March 2022 01:44 PM

I’m just prepping a WCA appeal for 2pm hearing and I’ve come across something that angered me the first time I saw it.

In response to all the issues raised in IM, they’s supplied an excerpt of KC & MC describing how WCs try to start the JCP offer light and work up to the more onerous WRA.

That is dumped in as mitigation for the fact they can’t supply evidence of the activities as required by IM. It completely misrepresents Judge Wright’s findings in KC & MC and I’ve got a bit hot under the collar!

It’s just paras 48 & 116 of the decision.

Does this happen often? Even up north?

Seen one as above so far i.e. the most recent appeal. I’m guessing it’s a new part of the template.

 

[ Edited: 11 Apr 2022 at 05:01 pm by shawn mach ]
BC Welfare Rights
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The line that the process involves “moving the claimant from less demanding work-related activity towards more demanding tasks” has frequently appeared in DWP submissions for quite a while on this side of the Pennines.

Elliot Kent
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I have no idea what you have done Dan, but you have managed to turn this entire page into italics.

At any rate, yes this is a familiar stock phrase from submissions and has been for quite a while in the North East.

I hope that your hearing went well.

[ Edited: 24 Mar 2022 at 04:03 pm by Elliot Kent ]
Peter Turville
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Be fair, the DWP are only trying to keep us entertained by introducing new nonsense paras. into submissions.

Perhaps it time someone did some FOI requests for copies of the current templates and stock phrases available to DWP appeal writers for WCA, PIP etc submissions?

past caring
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Dan - we didn’t/couldn’t stray too far into UC territory because MR was about ESA, but I did make Judge Wright fully aware that this nonsense was still happening with UC- and we’re now more than a year on from even that decision. So much for the hope he expressed in para. 3

The decision in this appeal may therefore be seen as part of a trilogy of
decisions on the above issue, beginning with the Upper Tribunal’s
decision in IM v SSWP [2014] UKUT 412 (AAC); [2015] AACR,
followed by my earlier decision in KC and MC v SSWP (ESA) [2017]
UKUT 94 (AAC) and ending with this decision. It is sincerely hoped
that this decision will mark the end of the Upper Tribunal needing to
examine the adequacy of the information the Secretary of State
provides to First-tier Tribunals in appeals in which regulation 35(2) of
the ESA Regs (or its Universal Credit counterpart) may be in issue.

(Edited to bold the MR bit because Dan has naused up the italics)

[ Edited: 24 Mar 2022 at 05:32 pm by past caring ]
Dan Manville
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I honestly can’t see where the stray {i} is but I’m kinda enjoying this so I’m not looking too hard! :)

I didn’t see many WCA appeals in my last job as everyone took advantage of IM once that settled and we locked down as soon as I started at GMLC so the WCA caseload has been pretty slim.

Last weeks’ Tribunal was nearly as horrified as I was that the excerpt from KC & MC was in there so there’s hope. I’m wondering how we can feed back such poor practice though. It shouldn’t need Judge Wright to give them yet another Talking To should it?

and while I’m here, I ran the argument in CPAG’s “making an exception” article which has become known as the “don’t beat up on old people” argument in our office; IJ & CF were the cases, dating all the way back to reg 27 IFW days (Gods I feel old now!). Thanks Martin; it might be 9 years old now but it’s still a gem.

[ Edited: 29 Mar 2022 at 11:04 am by Dan Manville ]
MM3
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Andyp5 Citizens Advice Bridport & District - 24 March 2022 02:23 PM
Dan Manville - 24 March 2022 01:44 PM

I’m just prepping a WCA appeal for 2pm hearing and I’ve come across something that angered me the first time I saw it.

In response to all the issues raised in IM, they’s supplied an excerpt of KC & MC describing how WCs try to start the JCP offer light and work up to the more onerous WRA.

That is dumped in as mitigation for the fact they can’t supply evidence of the activities as required by IM. It completely misrepresents Judge Wright’s findings in KC & MC and I’ve got a bit hot under the collar!

It’s just paras 48 & 116 of the decision.

Does this happen often? Even up north?

Seen one as above so far i.e. the most recent appeal. I’m guessing it’s a new part of the template.

 

Yes, happens here in this part of the north (W. Scotland),. I now have a more or less standard submission saying that as a result the decision should be in the appellant’s favour. Even more annoyingly, at times they do not even include the wording about it not being possible to be certain what is available in the appellant’s area - but that give an opportunity to point out that on the face of the document, some things are only available in England.  It’s irritating but otoh probably sometimes works for the appellant.

[ Edited: 11 Apr 2022 at 05:02 pm by shawn mach ]
shawn mach
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Dan Manville - 29 March 2022 10:54 AM

I honestly can’t see where the stray {i} is but I’m kinda enjoying this so I’m not looking too hard! :) ....

Just found the rogue HTML ..... now fixed

Mike Hughes
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Spoilsport 😊

Stainsby
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Happens in Lonsdon all the time, so much so that I now have a standard response.

Here is a redacted extract from one of my submissions

12.4   I would add that in KC and MC –v- SSWP (ESA) [2017] UKUT 0094 (AAC) Judge Wright is critical of DWP submissions post IM and reminds us that the list must show clearly what are the most and least demanding activities in the claimant’s area, and that the least and most demanding activity that the claimant could be expected to undertake should be indicated by reference to that list

12.5 I note that the Respondent cites paragraphs 48 and 116 of KC as if KC supports her case, but I submit that it is strongly arguable for reasons that I outline at paragraph 15 below that the Respondents’ position in the present case is incorrect, and KC when taken as a whole is not supportive of her, not least because paragraphs 48 and 116 amount to nothing more as Judge Wright’s acknowledgement of her submissions regarding the so called jobcentre plus offer

15 The Respondent (S5(14) page H of the Response) cites KC and MC –v- SSWP (ESA) [2017] UKUT 0094 (AAC) as if it supports her case but as I point out at [12.4] above Judge Wright is critical of DWP submissions post IM and reminds us that the list must show clearly what are the most and least demanding activities in the claimant’s area, and that the least and most demanding activity that the claimant could be expected to undertake should be indicated by reference to that list.

15.1 The Respondent gives no indication as to how those particular activities are to be either provided or monitored in the context on mandatory work-related activity. (other than to refer to KC and MC)

15.2 KC does not support the Respondent’s case because Judge Wright also holds at [50] and at [117] 

50 The Secretary of State stated that guidance has been in place since at least April 2013 for the work coaches to ensure that they are aware that the work-related activity agreed with claimants is appropriate and reasonable taking into account the claimant’s circumstances and is not anything that could put the claimant’s health at risk or is contrary to their religious beliefs. Importantly, however, he accepted that although work coaches can request a summary of the basis on which the claimant was found to have limited capability for work, this was not required nor was it done as a matter of course. This last point would
seem, unfortunately, to echo the situation in IM, where the three-judge panel accepted (paragraph 59) that “none of the findings made by a healthcare professional on a work capability assessment or of reasoning of the decision maker ….. on the application of regulation 35(2) is currently passed to a work programme provider; they effectively start afresh, save that they are alerted without particulars of a vulnerability”, for which they then commented (paragraphs 60 and 62):

“…this is a troubling approach that fails to have proper regard to the underlying purpose of regulation 35(2) to provide a safety net for vulnerable claimants. It seems to us that a failure to pass on relevant information about an identified risk is contrary to any principles of risk-management, whether the recipient is to be bound by the information or not.
….it would not be surprising if [this] approach……to the application of regulation 35(2) was a significant factor in a vulnerable claimant falling through its safety net and so suffering harm.”

117 I do not have the space here to set out all that is said in either the DWP Operational Instructions for work coaches or Appendix 7 to the WCA Handbook. If the Secretary of State wishes to rely on either in individual appeals then he may need to supply them, or a fair summary of them, with his appeal response on the appeal. I will, however, make three observations. First, Appendix 7 to the WCA Handbook does not advise the HCP that the extent to which the individual claimant satisfies Schedule 2 to the ESA Regs or regulation 29 of the same regulations is not passed on to the work coach. Second, the (admittedly non-exhaustive) examples of work-related activity given in Appendix 7 to the WCA Handbook do not appear to include what might be thought to be the more demanding work-related activity an ESA claimant might be asked to undertake. For example, it refers to meeting by telephone setting up an email account and researching local transport routes, but not undertaking work experience or cold calling. Third, although this may well have changed since February 2012, the ESA85 in MC’s case does not show any detailed or personalised consideration given to the work-related activity he could safely undertake

16 To use Judge Wright’s words, there is similarly no “detailed or personalised consideration given to the work-related activity” that Mrs X could safely undertake in the present case. 

 

splurge
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Its December 2023 and I am still dealing with this paragraph in an appeal bundle in sunny Essex! I just hope that the Tribunal here is able to agree to the irony and the DWP’s lapse.