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Mandatory revisions before appeals
Jobseekers Act section s1(2) “a person is entitled to JSA if he - (f) does not have limited capability for work;”
so a determination that a person does not have LCFW (which leads to an outcome decision of no entitlement to ESA) must mean JSA cannot simply argue the person is not available for and actively seeking etc simply on the basis of the extent of their limitations. They would have to show that the claimant does not meet s1(a-c) = availability etc.
I suspect there are not many EAs or DMs who know that either!
It does seem clear from the pronouncements of Freud et al that (most) claimants will have to claim JSA during the compulsory revision stage.
This is really one for the lawyers ; would it be possible to apply to the High Court for a mandatory order to force the Secretary of State to carry out a reconsideration within a set time or by a certain date. If the sec of state failed to meet this deadline could the claimant then go straight to appeal and by doing so have ESA reinsated at the assessment rate?
Thanks guys.
Yes this is my fear exactly. What will people do whilst the revisions are being dealt with? Many people will not be available for work or be able to actively seek work. The JCP advisors will be telling people that they need to claim ESA. People not knowing the system will make a new claim for ESA, which will be refused etc, etc and in the mean time the client will have no money, their HB and CTB will stop, rent arrears, CT arrears…need I go on! One big mess!
I cannot see how any JC+ adviser can refuse a claim for JSA in these circumstances or advise that an ESA claim be made unless there has clearly been a change in the claimant’s difficulties. The Secretary of State has made a decision that the person ‘does not have limited capability for work’ and I don’t think the JC+ adviser has the power to refuse to allow or to obstruct a claim being made, there is nothing in Reg 4 of the claims and payments regs that gives the sec of state any right to refuse to take a claim.
To refuse to allow or to obstruct would also effectively contradict the existing ESA decision and I don’t think that the DWP could or should have the legal or moral right (natural justice?) to make mutually exclusive decisions about the same set of circumstances. Unless the claimant says they are adamant that they will not be looking for work or willing to engage with any ‘reasonable’ requirements the JC might set I think that JC+ will just have to lump it.
I think that the operative word is ‘reasonable’ and I imagine that for some people the jobseeking plan will have to be fairly minimal. I can see a lot of appeals against sanctions coming up!
Believe me Pete this has been happening here locally already. I have many clients that have failed the WCA, are then told by JCP advisers to make a claim for JSA (no mention of ESA at assessment rate till outcome of hearing).
Client goes to JCP and struggles to actively look for work and then told to claim ESA!! The client usually gets sent to us at this stage. Trying to get ESA reinstated at the assessment rate untill the outcome of the appeal is sometimes a nightmare!! Ok, I’ll admit following meetings with JCP this is not happening so frequently, but I can see it happening more often again when the mandatory reconsideration comes in.
This is really one for the lawyers ; would it be possible to apply to the High Court for a mandatory order to force the Secretary of State to carry out a reconsideration within a set time or by a certain date. If the sec of state failed to meet this deadline could the claimant then go straight to appeal and by doing so have ESA reinsated at the assessment rate?
Recourse to judicial review is certainly available for undue delay. As usual, each case will turn on its own facts.
Thanks guys.
Yes this is my fear exactly. What will people do whilst the revisions are being dealt with? Many people will not be available for work or be able to actively seek work. The JCP advisors will be telling people that they need to claim ESA. People not knowing the system will make a new claim for ESA, which will be refused etc, etc and in the mean time the client will have no money, their HB and CTB will stop, rent arrears, CT arrears…need I go on! One big mess!
I cannot see how any JC+ adviser can refuse a claim for JSA in these circumstances or advise that an ESA claim be made unless there has clearly been a change in the claimant’s difficulties. The Secretary of State has made a decision that the person ‘does not have limited capability for work’ and I don’t think the JC+ adviser has the power to refuse to allow or to obstruct a claim being made, there is nothing in Reg 4 of the claims and payments regs that gives the sec of state any right to refuse to take a claim.
To refuse to allow or to obstruct would also effectively contradict the existing ESA decision and I don’t think that the DWP could or should have the legal or moral right (natural justice?) to make mutually exclusive decisions about the same set of circumstances. Unless the claimant says they are adamant that they will not be looking for work or willing to engage with any ‘reasonable’ requirements the JC might set I think that JC+ will just have to lump it.
I think that the operative word is ‘reasonable’ and I imagine that for some people the jobseeking plan will have to be fairly minimal. I can see a lot of appeals against sanctions coming up!
Believe me Pete this has been happening here locally already. I have many clients that have failed the WCA, are then told by JCP advisers to make a claim for JSA (no mention of ESA at assessment rate till outcome of hearing).
Client goes to JCP and struggles to actively look for work and then told to claim ESA!! The client usually gets sent to us at this stage. Trying to get ESA reinstated at the assessment rate untill the outcome of the appeal is sometimes a nightmare!! Ok, I’ll admit following meetings with JCP this is not happening so frequently, but I can see it happening more often again when the mandatory reconsideration comes in.
We have the same problem but in a slightly different way, JC+
advisers who realise that the person in front of them has no real chance of finding work advise them to claim ESA- all well and good and in many cases completely appropriate- and then they are turned down at the WCA. Understandably the claimants are baffled and upset,they were told to claim ESA by the Jobcentre and when they do so they are found to be fit for work and told to go back to JSA again.
This is really one for the lawyers ; would it be possible to apply to the High Court for a mandatory order to force the Secretary of State to carry out a reconsideration within a set time or by a certain date. If the sec of state failed to meet this deadline could the claimant then go straight to appeal and by doing so have ESA reinsated at the assessment rate?
I wonder whether compelling someone to claim JSA might be argued to be a disincentive to appeal thus breaching art 6 ECHR.
edit… Smyth might have some bearing… and it gives opportunity to discuss impermissible clogs which is no bad thing for a lad from’t mill towns like me.
[ Edited: 27 Feb 2013 at 03:32 pm by Dan_Manville ]Does anyone know if this is definately being introduced in April. Advisernet still says ‘expected to come into force’...
Isn’t it April for PIP only? I’ve been working to an October date for ESA (but agree it’s far from clear)
I thought PIP only - then got confused by the news story on the Rnet front page referring to SI 380 2013. This says its about decisions and appeals and the linked Regs give 29th April as the commencement date. However the linked Regs under this SI are in fact the UC, PIP, JSA, ESA Claims and Payments Regs and contain no provisions about appeals. So what’s the story about the D+A Regs? I can find no apparently relevant SI’s on http://www.legislation.gov.uk. Ros? Anyone?
Thinking about it though, there will presumably be a 8.4.13 introduction for PIP and a 29.4.13 introduction for UC. JSA and ESA could be any of those dates or a later one. Just hope it is October. I was assuming the first PIP cases wouldn’t arise until June or so, ESA later.
Richard Atkinson
DIAL House Chester
hi richard - you are right - sorry for confusion - have amended the story accordingly.
as you say, no decisions and appeals regs as yet -
cheers ros
I can only find a draft of D & A regs:
http://www.legislation.gov.uk/ukdsi/2013/9780111531556/pdfs/ukdsi_9780111531556_en.pdf
This seems to say mandatory revisions for ESA, JSA, UC from 29th April.
Nice to see you back Richard but I thought you’d chucked this business in. Was it just a ruse to get a leaving prezzie?
Just part time and voluntary now.
latest edition of touchbase says -
‘Mandatory reconsideration and direct lodgement will be introduced for Personal Independence Payment (PIP) on 8 April 2013 and Universal Credit on 29 April 2013. These new benefits will be the first to introduce the changes and will help inform their introduction on 28 October 2013 for all other DWP-administered benefits and child maintenance cases.’
here’s a link -
http://www.dwp.gov.uk/docs/touchbase-ezine-march-2013.pdf
and to rightsnet news story -
Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 now published -
Could anybody help me with a query that is making me scratch my head a bit (!!)
If somebody is challenging thier ESA decision that they do not have lcw and therefore should sign on - are they able to sign on if we have sick / fit notes from GP whilst challenging the decision? Would JBC+ DM’s not deem client as being able to actively seek work if they have a sick / fit note and therefore not allow them JSA?
Also i noted in March edition of Touchbase that they state that DWP have agreed to return an appeal response (does this mean reconsideration?) within 28 days. It states that these time limits will be introduced from April 2013 for UC and PIP (which aligns with dates for new rules when madatory recons are introduced) but states October 2014 (Oct 2013 when other DWP benefits brought into mandatory appeals process) for all other DWP benefits. Does this mean we have to wait a year for these time limits to be introduced or is this a typing error??
Appreciate any help - thank you!