Late appeal re support group

Client was migrated from IB to cESA without a WCA, decision issued 19/10/11. Prompted by cESA stopping after 365 days she appealed against the decision placing her in WRAG, DWP received on 31/12/12. As the appeal was received more than 13 months after the decision the DWP have sent it to the Tribunals Service to decide whether the appeal should be admitted, and they have given the client two weeks to explain in writing why she thinks they should.  The client is adamant that when she was migrated she received no information about the structure of ESA, was therefore unaware that there were two groups, and was therefore unable to appeal against being placed in the wrong group. Is this argument likely to succeed or is there an alternative approach?

All appeal-able decisions MUST be in writing and must offer the client the opportunity to challenge a decision made by the DWP/JC+/Whoever.

If she never received the decision letter confirming she has been placed in the WRAG then I think you may have good cause.

The problem, of course, is proving it.
Jobcentre Plus may well say the decision letter WAS posted at the time and the client either ignored it, stuck it in a drawer or threw it away.

There is precedent for this regarding mail going missing in the post, and its down to the TS to decide wether they reasonably expect that this has occurred. Tricky one!

From my own experience one of the most frustrating things i come across is the huge amount of clients who simply dont read their award letters at all. Or any other DWP/LA correspondence for that matter.
Fun and games when the council tax bill come in for clients who have never paid it before.
Busy times ahead!

This query highlights the issue once again of WRAG decision letters going out with insufficient information for the claimant to make an informed decision. There is a marked difference between the decision letter about ‘no limited capability for work’ decisions and WRAG decisions. With a WCA failure letter the scores are attached. With a WRAG letter, the claimant ‘meets the threshold’ (no score sheet).

The WRAG decision has the standard npara about a right to appeal, but why would a WRAG claimant appeal when s/he has not been given the assessment score, let alone a leaflet at this point about how people fit into the appropriate groups (including the special exceptions). Unless a claimant seeks advice (the minority and post-code sporadic), then they simply assume they have been given a ‘sickness benefit’, so what’s the problem?

In commercial circles this would constitute a variation on ‘confusion marketing’.  However, in a benefits context, this amounts to under representing the true support group figures, probably breaches the Equality Act 2010 (for those with LD, MH and ABI conditions) and is either designed to mislead or is hopelessly incompetent. Couldn’t possibly say which one it is myself.

The problem is I understand there is no discretion to admit an appeal outside the 13 months - this is an absolute time limit. You could try an anytime revision on the grounds of official error i.e letter did not contain sufficient info to inform client of what had happened in the migration, then appeal any refusal to revise? I don’t know I am just throwing this out? And/ or fresh claim to see if she still satisfies cont conditions after break of more than 12 weeks? I don’t think the late appeal will work so you may need alternatives, or you are in the realm of compensation which will be difficult….

You could try this:

1.  A person has a right of appeal under the Social Security Act 1998 against a conversion decision.  However, such a right only arises after the conversion phase has ended – see para 5 of Schedule 2 to the ESA (Existing Awards) (No2) Regs 2010, aka the Conversion Regs.

2.  The conversion phase ends immediately before the effective date of conversion – Reg 5(6)(a) Conversion Regs.

3.  A person with a right of appeal under the Social Security Act shall be given written notice of the decision against which the appeal lies and of his right of appeal against that decision – Reg 28(1)(a) & (c) Decisions and Appeals Regs 1999 (D&A Regs).

4.  A claimant must be notified in writing of a conversion decision – Regs 2(2) and 5(5) Conversion Regs.  It is the practice of the Secretary of State to send the notification letter concerned in advance of the effective date of conversion.

5.  As a result, it is submitted that the notification letter does not comply with Reg 28(1)(a) D&A Regs.  That is because at the time it is sent a right of appeal has not yet arisen against the conversion decision for the reasons set out in para 1 above. 

6.  The time limit for appealing a conversion decision is governed by rule 23(2) of, and Schedule 1 to, the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008.  The normal one month time limit starts to run from “the date on which the notice of the decision being challenged was sent to the appellant” (para 1(a) of Schedule 1).  It is submitted that the notice referred to there must be the notice given under Reg 28 D&A Regs.  Otherwise, the time limit for appealing a decision could start to run and, indeed, even expire, before the legal right to appeal it ever arose.  Such an absurdity could not possibly have been the draftsman’s intention.

7.  It follows that the time limit for appealing the conversion decision has not started to run under para 1(a) of Schedule 1 to the Tribunal Procedure Rules above.

8.  We request that the tribunal direct the Secretary of State to issue a decision in accordance with Reg 28 D&A Regs.

Alternatively, your client could just re-apply for CESA now.  If she is put in the support group re that new claim then the new award of CESA would, provided she meets the other conditions of section 1B Welfare Reform Act 2007, be deemed to be contributory ESA.  In the present situation it seems the only benefit of late appealing the conversion decision compared to making a new claim is £5.90 p/w (ie the difference between the support component and WRAC) x upto 13 months.  No arrears of EDP are likely for that 13 month period given that the EDP can only be paid as income-related ESA.  And if the claimant could qualify for ir-ESA she’d hardly be looking to appeal the conversion decision in the first place.