Support group warnings and ‘cutting your losses’

I’ve noticed that tribunals are now issuing warnings at appeals where appellants are seeking to get from the WRAG to the SG and are suggesting that even the 15+ points already scored may be under question.  The risks are however are greater than most appellants would probably appreciate.

I have a case pending where, reliant upon having ESA(c) and facing having no money at all, a customer has put in a late appeal.  The appeal is now listed for next month but, in the meantime, the appellant now tells me he is in the SG following a further work capability assessment.  As he has been in the WRAG his National Insurance contributions are continuous and link back to when he last worked so he will get his ESA(c) again.  If he were to lose his appeal however, i.e. if he were fail to even be placed in the WRAG, then there would be a break in his National Insurance contribution record and hence, even if now subsequently in the SG, he would not actually be paid any ESA.

Now, technically, I suspected that something like this could happen but it is extremely difficult to explain to appellants who are already reeling from the points system and the highly political decision to time limit ESA(c) awards.  I never anticipated that I would have to be potentially in a situation where I would have to get someone to think about withdrawing their appeal in order to protect their existing ESA award. 

I’ve read the DWP guidance at Memo DMG 13/12 but, to my reading, it does not quite cover this situation. 

I really don’t like telling people ‘Are you feeling lucky .....’.  Any thoughts on this would be welcome.

If this is a migration decision under appeal (where client was on IB) and tribunal finds client does not even have LCW then the ESA he was receiving pending that appeal would, retropsectively, be classed as assessment rate ESA(c) rather than main phase ESA(c) + wrac.  But the point is that it would still be ESA(c).  Yes, the wrac would have been overpaid but it wouldn’t be legally recoverable.  It’s unclear from your post but it looks like he got into the SG before his ESA (main phase + wrac) was time-limited, ie via a supersession.  His ESA(c) at the assessment rate pending appeal could equally have been superseded.  So there’s no risk to his current SG even if his tribunal finds that he does not have LCW.

Even if this wasn’t a migration case, there’d still be no risk to his current SG status in my view. 

If DWP stopped paying his currrent main phase + support component should he lose above tribunal I’d be appealing the decision to stop paying and argue that the link hasn’t be broken at all.

Tom H - 19 August 2013 03:25 PM

If this is a migration decision under appeal (where client was on IB) and tribunal finds client does not even have LCW then the ESA he was receiving pending that appeal would, retropsectively, be classed as assessment rate ESA(c) rather than main phase ESA(c) + wrac.  But the point is that it would still be ESA(c).  Yes, the wrac would have been overpaid but it wouldn’t be legally recoverable.  It’s unclear from your post but it looks like he got into the SG before his ESA (main phase + wrac) was time-limited, ie via a supersession.  His ESA(c) at the assessment rate pending appeal could equally have been superseded.  So there’s no risk to his current SG even if his tribunal finds that he does not have LCW.

Even if this wasn’t a migration case, there’d still be no risk to his current SG status in my view. 

If DWP stopped paying his currrent main phase + support component should he lose above tribunal I’d be appealing the decision to stop paying and argue that the link hasn’t be broken at all.

Thanks for the reply.  It was not a migration case and the appellant had never been in the SG until the very recent further WCA which happened whilst he was waiting for his SG appeal.  He had been put in the WRAG and claimed ESA(c) until the 12 months rule kicked in.  As he only just got his appeal in within the 13 months absolute limit he had been left without any ESA(c) for a long time.

The question is whether appellants put in the WRAG (particularly those with deteriorating health conditions) should ever consider not pursuing potential arrears (i.e. withdrawing an appeal) for the sake of being able to get ESA(c) from some future date (as they will have left their National Insurance contribution record intact).  If I am correct, I think that this is something appellants need to be very careful about as what is at stake is the possibility of never being able to be paid ESA(c) again.

So on the facts of your case his ESA was time-limited.  Take this example:

(i) New claim for ESA effective from 1/5/12

(ii) Claimant passes WRA by a decision dated 10 Oct 2012 and is put in WRAG from 7/8/12 (ie wk14 of his claim).

(iii) He doesn’t appeal but then discovers that his ESA is about to be time-limited from 30/4/13.  So he late appeals the decision in (ii) arguing that he should have been put in support group.

(iv) His main phase ESA + WRAC is time limited from 30/4/13.

(v) He remains on LCW credits (presumably he doesn’t qualify for IRESA, eg because of capital, working partner) and as part of that credits award he is re-assessed on 30/6/13 and put in support group.  Because his award of ESA terminated on 30/4/13 the DMG suggests that in these circumstances the DM should invite the claimant to make a new claim for ESA from 30/6/13.  That claim would result in an award of ESA (c) from 30/6/13.  The legal basis is section 1B Welfare Reform Act 2007.

(vi) On 1/8/13 a tribunal hearing his above late appeal finds not only that he does not qualify for the support group but that he did not have LCW at all.  It replaces the decision in (ii) above with the result that claimant is overpaid WRAC from 7/8/12 (wk14) - 30/4/13 (date ESA time limited).  But WRAC is not legally recoverable because claimant could not fail to disclose or misrepresent the material fact that a tribunal would at some future date retrospectively hold that he did not qualify for the WRAC.

You appear to be saying that the tribunal decision would result in the ending of his new award made at point (v).  But I don’t think it necessarily would.  That’s because the tribunal decision would, retrospectively, turn the ESA he received from 10/10/12 into an award of assessment rate ESA(c) pending appeal (ie he would have appealed against the decision to score him less than 15pts had it been made by a DM on 10/10/12 and the tribunal simply stands in the DM’s shoes at that date).  It follows that his award of ESA(c) pending appeal would still have been time-limited from 30/4/13 so his new claim made at point (v) would still satisfy section 1B WRA on 30/6/13. 

The only stumbling block is the fact that he would have needed a sick note from 10/10/12 to support his award of ESA(c) pending appeal which he obviously did not provide because he was at that point in the WRAG.  It follows, however, that it would be reasonable under Reg 2(1A) Medical Evidence Regs to allow him to put a backdated sick note in for the period 10/10/12 – 29/6/13 in the circs concerned. 

Should a DM attempt to stop the award in (v) on the strength of the tribunal decision in (vi), I’d appeal the DM’s new decision. 

In your client’s case, if as you say he made his late appeal just before the 13 months ran out, the chances are his ESA (main phase + WRAC) would have expired well before then.  As we know, the 13 months deadline runs from the date of decision (eg, 10/10/12) whereas the 365 days’ time-limiting would run from the date of claim (eg 1/5/12).  So it would help if you provided some dates.  I do get the point you’re making actually.  And I’ve no doubt that a DM might attempt to stop the later award that includes the SC.  You then find yourself having to ask for backdated sick notes to support an appeal and in the meantime the client has no money.  So yes in practice I see that the client does have a dilemma over continuing with his appeal.

Edit:  The safest option would be for the claimant to submit the sick note for the period 10/10/12 – 30/6/13 when he makes, upon the DM’s invitation, his new ESA(c) claim at 30/6/13.  The DM would advise (correctly at that point) that a sick note was not needed.  However, it would be akin to making a protective claim on the client’s part (instead it would be a protective sick note) protecting him against a future adverse tribunal decision.