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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Court of Appeal to hear DWP appeals against UT WCA decisions on 21 and 22 October

Ros
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From yesterday’s Hansard concerning UT decisions that people with mental health problems put at ‘substantial disadvantage’ by WCA (JR/2638/2012 and JR/2639/2012) -

Stephen Timms: To ask the Secretary of State for Work and Pensions what assessment he has made of the recent finding of the Upper Tribunal that Work Capability Assessment places people with mental health problems at a substantial disadvantage; and if he will make a statement. [171081]

Mike Penning: In May 2013 the Upper Tribunal handed down an interim judgment in a judicial review which challenged the process of when and whether the Department obtains further medical evidence for ESA claimants with a mental health condition going through the WCA process. The Upper Tribunal clarified that the Department has not been found to be in breach of its duty to make reasonable adjustments under the Equality Act 2010, but directed the further steps that should be taken in the proceedings in order to decide the question of whether there are reasonable steps that could be taken in order to avoid the disadvantage it had found to exist.

The Department does not agree with the judgment and the Court of Appeal have granted permission to appeal it. We welcome this as we believe we have made—and continue to make—significant improvements to the WCA process for people with mental health conditions.

This appeal will be heard on 21 and 22 October 2013. All proceedings in the Upper Tribunal have been suspended until the appeal has been decided.

here’s a link to hansard -
http://www.publications.parliament.uk/pa/cm201314/cmhansrd/cm131016/text/131016w0003.htm#13101685000160

Ros
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Breaking news - Court of Appeal has rejected the DWP’s appeal - rightsnet news story to follow -

https://www.rethink.org/media-centre/2013/12/victory-for-welfare-campaigners-as-government-loses-appeal-against-benefits-ruling

Peter Turville
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It will be interesting to see if DWP now make any adjustments, following the CA decision, to the process of contacting claimants by phone at the mandatory revision stage as well as within the WCA itself.

No doubt it will be ‘business as usual’.

Ros
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Andrew Dutton
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How soon will DWP Ministers declare this to be a stunning victory for them?

Ros
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strangely, tumbleweed from dwp press office at the moment -

https://twitter.com/dwppressoffice

stevenmcavoy
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Andrew Dutton - 04 December 2013 02:06 PM

How soon will DWP Ministers declare this to be a stunning victory for them?

probably still celebration the news that, due to the Governments amazing economic policies, only just over 2,000 people have had to claim Universal credit so far.

which is of course, far less than the number of claimants expected to be claiming by this stage.

another victory!

Dan Manville
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Peter Turville - 04 December 2013 01:21 PM

It will be interesting to see if DWP now make any adjustments, following the CA decision, to the process of contacting claimants by phone at the mandatory revision stage as well as within the WCA itself.

I don’t think they’ll have much choice This decision opens the door for people with MHPs to seek damages against DWP where they’ve been disadvantaged.

Civil Legal Advice should be creaking at the seams tomorrow morning.

Have you ever seen me dancing? Really dancing?

Paul_Treloar
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so, what does this mean practically?

Dan Manville
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Paul_Treloar - 04 December 2013 11:52 PM

so, what does this mean practically?

The UT originally laid down a mechanism for the Secretary of State to establish how to rectify the adjudged discrimination and then implement it; offering up an “adjustment” that would in turn offer due remedy. This was all a la Prof Harrington’s recommendations. The Sec State originally said “good idea” but then, in bringing the appeal, is perceived to have resiled from that.

The Court of Appeal now says that they (the UT) went beyond their jurisdiction to suggest a means of rectifying the discrimination and could only go so far as identifying discrimination and disadvantage; then proferring remedy. They couldn’t go so far as suggesting an adjustment; not even as a means of remedy.

In practice; people with MHPs laying claims against DWP where they have experienced disadvantage during the WCA may have fallen foul of being parked behind the Harringtonesque review that was originally suggested and even, tentatively, agreed by Sec State; now that’s no longer the case the field is wide open for people to seek damages.

Well placed claims will be very persuasive that DWP should amend it’s policies and thus stop DWP & ATOS trammeling the most vulnerable in society. After all, we’ve been shouting from the rooftops for what, 5 years? Despite lobbying from all angles little has happened to rectify the situation. In fact I, for one, know it’s become measurably worse. Now there is a mechanism to challenge it directly other than by successfully arguing wrong decisions and hoping, fecklessly, that that will feed back to improve the quality of decision making.

 

As an aside, I note that the decision refers to Dr Paul Gunnyeon and cites him arguing that only a minima of Ft Tribunal decisions were decided on the basis of fresh medical evidence. I have no problem asserting that is bent; to the point of verging on dishonesty! I’ll bet HH Judge Robert Martin choked on his coffee when he read that too. Tribunals’ stated reasons for overturning WCA decisions as recorded on the decision notice ran to one sentence, from a drop down menu. To argue, in court, that that has any strength as evidence only illustrates what we’re dealing with!


Edit: S149 of the Equality Act lays a duty on a Decision Maker to “have due regard to the need to— (a)eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act”

I am already waiting to test the legality of a supersession decision where the Filework Guidlenes have not been followed; this decision could open up a wider argument that decisions where FME has not been obtained are unlawful.

It could really be a game changer!

[ Edited: 5 Dec 2013 at 09:02 am by Dan Manville ]
Paul_Treloar
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Last week, I met a couple of solicitors who work for PLP who were a party to this case, and they told me that they’re still not entirely sure what this decision means procedurally and certainly not in practice for any clients potentially affected by it.

Dan Manville
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Paul_Treloar - 09 December 2013 01:45 PM

Last week, I met a couple of solicitors who work for PLP who were a party to this case, and they told me that they’re still not entirely sure what this decision means procedurally and certainly not in practice for any clients potentially affected by it.

I can see why; looking from a strict Welf perspective, without the suggested adjustment we’re foundering; although I still think there’s weight in questioning the lawfulness of supersession decisions on appeal. Whether it will have proccedural impacts beyond individual appeals I don’t know.

However as has been said elsewhere; this is an underlitigated field and, maybe, therein lies an answer. There may be damages arising from dubious decision making in light of this; that could, of itself, be persuasive that procedures need amending…