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Employment & Support Allowance - Payment of Work Related Activity Component
3)In this Chapter “relevant benefit”, subject to section 21(4) below, means any of the following, namely— .
(a)benefit under Parts II to V of the Contributions and Benefits Act; .
(b)a jobseeker’s allowance; .
(c)income support; .
(d)family credit; .
(e)disability working allowance; .
(f)a social fund payment mentioned in section 138(1)(a) or (2) of the Contributions and Benefits Act; .
(g)child benefit; .
(h)such other benefit as may be prescribed.
Which one!
sub para 3(ba) ‘an employment and support allowance’ was added by welfare reform act 2007 - see p 208 of sweet and maxwell social security legislation volume III.
(3) In this Chapter “relevant benefit”, […2] means any of the following, namely–
(a) benefit under Parts II to V of the Contributions and Benefits Act;
(b) a jobseeker’s allowance;
[3(ba) an employment and support allowance;]
[4(bb) state pension credit;]
(c) income support;
(d) […5]
(e) […5]
(f) a social fund payment mentioned in section 138(1)(a) or (2) of the Contributions and Benefits Act;
(g) child benefit;
(h) such other benefit as may be prescribed.
Amended by the Welfare Reform Act 2007.
sorry - cross posting going on there.
No worries Ros. It’s nice for someone to confirm that I wasn’t dreaming it.
JM,
Was the original scenario this:
(i) your client submits claim form (ESA1) and asks in the form itself or or in a covering letter attached to it for the WRAG to paid from day 1,
or
(ii) only after he’s been awarded ESA, he asks for the WRAG to be paid and backdated to the outset of the claim.
Tom : sorry to bother you as this is off topic, but could you please email me at .(JavaScript must be enabled to view this email address) with your contact details. Just a quick private question i need your help with. Apologies to rightsnet as this obviously isnt a dating site!
FAO Tom - Client claims ESA on their own behalf. Client recieves a DWP letter about 2 weeks later stating they would recieve assessment ammount only. Then I submit Form GL24 asking for the WRAC from start of claim.
JM,
I was hoping you were going to say option (ii), especially 132 posts in.
In the present case the decision under appeal is the original decision awarding ESA made under section 8 Social Security Act 98. Section 8(2) provides:
(i) that the claim ends once a decision is made on it, ie the claim has no continuing effect after the date of the decision, and
(ii) that entitlement depends on facts existing only at the date of the decision, ie not facts that emerge afterwards; such facts would require a new claim.
One “fact” that existed at the date of the present decision was that the claimant was not in the WRAG. If your argument about Reg 4 ESA Regs is right, the earliest he could have qualified for the WRAG, on the info provided, is the “last day of a period of 13 weeks” running from day 1 of his entitlement.
The FtT has exactly the same powers as the DM. For that reason, it too can only look at the facts obtaining at the date of the decision under appeal - section 12(8)(b) Social Security Act (SSA) 1998.
In the light of the above, I agree with the SSWP submission that the tribunal had no jurisdiction at the date of the decision under appeal, PROVIDED that was the only decision under appeal. But that arguably is not the case here.
You altered your grounds of appeal/challenge in a telephone call which the SSWP have acknowledged in their submission.
Your telephone call was really an application for supersession which, unlike an appeal, does not have to be in writing. Depending when your call was made, you were advising that there either had been or there was going to be a change of circs from week 14 in accordance with either Reg 6(2)(a)(i) or (ii) Decisions and Appeals Regs. The DM’s refusal to act on your call was, in effect, a decision refusing to supersede. The decision itself was not formally issued to the appellant but both your call (the application) and the decision are referred to in the SSWP submission.
I’d submit to the UT that the refusal to supersede is a 2nd decision which is impliedly under appeal along with your above appeal against the original decision.
The effect of Reg 28 Decisions and Appeals Regs is that the time limit for appealing a decision does not start to run until the decision is issued. However, the decision itself remains valid – see R(P)1/04 and the commentary at pages 595-96 in Vol 3 Social Security Legislation 2012/13. The Northern Ireland Court of Appeal in Hamilton V Department for Social Development [2010] NICA 46 (and referred to in commentary at pages 63-64 of above volume 3) recently held, in effect, that a decision is legally valid provided it is eventually communicated to the claimant and her appeal rights are not prejudiced. Although the Court found that the failure to formally notify a decision had been perfected by a later letter, the Commissioner in the court below had felt that reference to the non-notified decision in the appeal bundle itself had similarly perfected the mistake. The Court acknowledges the HL judgment in Anufrijeva and finds that its decision is not in conflict with it.
In your case, your client’s appeal rights against the refusal to supersede were clearly not prejudiced by the fact the decision was not issued. On the contrary, you had already appealed the original decision and if anything it would prejudice those rights if that appeal was not found to also act as an appeal against the refusal to supersede. You should ask the UT to hold that this was an appeal against two decisions: the original decision awarding ESA (1st decision) and the later decision refusing to supersede (2nd decision).
It would follow that the FtT could have looked, in accordance with section 12(8)(b), at all the facts existing at the date of the 2nd decision. If that date was after week 14, one of those “facts” would have been that the appellant had not been assessed by week 14. That would give the FtT jurisdiction to consider your substantive argument re the interpretation of Reg 4.
If the date of the 2nd decision is before week 14, ie your telephone call had been applying for supersession based on an anticipated change of circs from week 14, then the situation is slightly more complicated. You would have been asking the FtT to decide whether the claimant would be “assessed” by week 14. That is perhaps something which the UT would have to remit to a new FtT to make findings on, eg what were the ATOS backlogs at that date. The DM could have made a supersession prior to, but effective from, week14 and so the FtT standing in his shoes could have done also – R(IB) 2/04.
Tom - many thanks for your last input, it’s all getting beyond me now to such a degree that I am contemplating paying the WRAC to my client out of my own money as to move to something else!
Keep your head up on this JM. You’re normally in the last chance saloon when you start arguing that a benefit is excluded from a definition, eg of “relevant benefit”. Equally, however, the fact they’re arguing jurisdiction is a sign they’re worried.
Dear Tony - did you wait after week 13 to request payment of WRAC - if so I believe your supersession arguement is water tight - unlike me requesting the WRAC from the outset! If they refuse to even supersede your request then isn’t this appeal to Tribunal!
Tony - re post 133…
6.—(1) Subject to the following provisions of this regulation, for the purposes of section 10, the cases and circumstances in which a decision may be superseded under that section are set out in paragraphs (2) to (4).
(2) A decision under section 10 may be made on the Secretary of State’s own initiative or on an application made for the purpose on the basis that the decision to be superseded—
(a)is one in respect of which— .
(i)there has been a relevant change of circumstances since the decision was made; or
Section 6(1)&(2) make reference to Section 10 ie being capable/uncapable for work etc so can I take it that ESA would be covered!
Dear Tony - I still have the three (3) cases outstanding with the following updates….
Case 1 = Leave to appeal granted to Upper Tribunal and awaiting dates.
Case 2 = Area Judge at Birmingham has agreed that ‘in the interest of justice’ this decision is now going back to a different First Tier Tribunal with a different judge to the one that ruled in my favour. Don’t see the point in this as if I do win again the DWP will surely appeal again on the identical grounds.
Case 3 - Still await directions from Birmingham.
JM
sorry to put a cat among the birdies but maybe reg 30[1] [2] applies here , in effect as long as the claimant provides sick notes he/she is treated as having lcw,