failure to attend, new claim WCA failed and DWP stance

Another delight within the decision making and appeals regs?

All dates refer to 2011. Client failed to attend a WCA in March. Good cause not accepted. client appeals. Clnt makes new ESA claim and attends WCA in June. Fails that WCA and appeals. Good cause appeal heard in Sept and allowed.

DWP agree tribunal decision re-instates original ESA award and pays arrears. Clnt withdraws WCA appeal on basis of DWP decision that original claim re-instated and ESA back in payment.

In Oct DWP issue new decision ending entitlement to ESA from June when failed WCA. DWP now argue that claimant still has to undergo a WCA regardless of the actual claim at issue (original or new) and the new claim / WCA decision is not revised as a consequence of the tribunal decision on the earlier claim. This new decision is based on advice from DWPs DMG section at Leeds (what used to be Central Adjudication Services). That advice contains no reference to any legislation to support it!

In effect DWP seem to be arguing that they can supersede a tribunal decision relating to an earlier claim on the basis of a decision made on a later claim even though the tribunal decision was not made until months after the 2nd claim decision = the Secretary of can break the ch-aim of decision making and finality of tribunal decisions.

This would seem to stem from an argument that a new claim starts the decision making process afresh and the tribunal dealing with any issue relating to an old claim is, in effect, only effective up to the date of the new claim. This seems to run contrary to the practical effect following a successful WCA appeal - Memo DMG 07/10 paras 26-28.

Given the delays in appeals this situation with failure to return ESA50 or failure to attend and failed WCA decisions on a subsequent claim is likely to arise more frequently because the WCA on the new claim will normally take place before the original appeal can be heard.

We have taken all action required to appeal / re-instate appeal against all relevant decisions etc.

Has anyone already prepared a legal argument against the DWP stance in this situation?
Has anyone seen a submission from the DWP that actually sets out their legal argument in support of their stance with reference to the legislation?

Still at least claimants will be delighted to know they will no longer need Legal Aid to deal with simple legal issues like this!

Hi Peter, Happy New Year to Oxford WR etc.

What a mess…. haven’t thought through too much but here are my initial ponderings:

1. The tribunal decision on the initial decision of the SSWP (a supersession) replaces that decision (new decision - no grounds for supersession). So the client then has an entitlement from March onwards.

2. However, there is then a new decision in September that the client does not have LCW (do they express this as a decision that no LCW from and including the new claim date?). At the time that decision was made it counted as a section 8 decision (decision on a claim). However, in light of the tribunal decision it should probably now be regarded as a section 10 supersession of the ongoing award of ESA. Once they have decided he does not have LCW isn’t that the end of it? His assessment phase has ended etc etc.

3. I think that client needs to ask for his appeal against that decision to be reinstated. Once that appeal is reinstated then he would be entitled to ESA pending that new appeal.

Hello Martin - and a Happy New Year from the dreaming spires to all at CPAG and in adviserland!

The DM grounds in the Oct decision include: “the tribunals decision [Sept] that the claimant had good cause not to return the ESA50 [in March] means that the claimant is entitled to receive payments of ESA throughout both ESA claims until DM disallowed [June] their ESA as they did not have LCW. Customer is therefore entitled to ESA for the period [from] March up to June. From June ESA is disallowed due to a low score WCA.”

What we are having trouble ‘getting our heads around’ is how in Oct a LCW outcome decision on the new claim made in June can be ‘reopened’ when DM has made [in Sept] a decision on the original claim following the tribunals decision and re-instated ESA. Bearing in mind that the claimant was not paid on the second claim pending the WCA because of Reg 30.

Perhaps the DM is seeking to argue that the Oct decsion is seeking to revise the Sept decision on the grounds of offical error or mistake to a material fact - in Sept when implementing the tribunals decision the SofS was ignorant of the decision he had already made in June following the WCA?.

we will forward the full decision and the advice from Leeds off line next week.

I guess the general point is that these type of complex decision making issues with ESA seem to be increasing because of delays at DWP, Atos & TS and they take an emormous amount of adviser time to resolve in each case.