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Application of reg 29 & 35 being tested by JCP?
Hi all
We have recently been told that in 4 areas around the country JCP appeals teams have been instructed to seek statements of reasons for reg 29/35 FtT decisions.
Certainly on one of my colleagues’ cases it looks like they’re shaping up to appeal against the First tier decision although they’ve not had the statement yet. Although they’ve been a bit cack handed in doing it they’ve suspended the difference between WRAC & SC and have referred for a WFI (naughty I know… we’re on it!)
It would appear to be the more marginal clients rather that my really ill bunch
I worry that someone has a mind to try and stiffen up the application of the exceptional circs as they’re used so often these days. We’d be interested to hear from anyone else who’s seeing similar.
Any idea which regions?
Any idea which regions?
Sadly not. I hope someone might say “strange that; they’ve just requested a statement on one of mine!”
I can say this is happening in Derbyshire, I don’t know about other areas
I just asked, because I have a reg 29 case where the tribunal say that a statement was requested by the R[espondent] two months late, but the benefit centre now deny all knowledge.
edit: I have now been told that in reg 29 cases they are routinely asking for reasons to “better understand” the decision-making, not necessarily to challenge the decision. Even if so, in our case (which I posted about here) I suspect this may have contributed to an unreasonable delay in arrears being paid, but I’m awaiting more info.
I recall some mention of a feedback system from tribunals to DMs to help them know why appeals were decided as they are, but I hadn’t realised it might be: “we always ask for a statement of reasons” ...
[ Edited: 8 Nov 2013 at 05:38 pm by Jon (CANY) ]When I was in Brum they did the “better understanding ” bit with PCA decisions but didn’t suspend anything. I smell rats!
I was told by a Judge this week in Exeter that this is now the case, and he assumed it was because there are now too many appeals being won on these grounds. I have certainly found this to be the case in the past 6 months and so am now routinely putting it in all suitable appeals, and quoting Charlton (Reg 29) and CE/1750/2012 [2013] UKUT 118 (AAC) :
” Judge Jacobs stated the need for evidence to correctly consider “substantial risk to physical or mental health”, and that, analogous to Charlton, above, it was necessary for the tribunal to state which work-related activities were suitable, if the applicant was to be found fit for work-related activities.”
The same judge also told me that the Upper Tribunal is now looking unfavourably on representatives letters to GPs in which part of the case we put forward and why is quoted and comments from them requested - does anyone know more about this? I do try to ask only for ‘as appropriate in your professional opinion’. (the judge said he would have done this himself as a Rep!)
Rose
It’s perverse that DWP, in massively increasing conditionality and decreasing the range of people who actually satisfy the WCA, don’t also appreciate that that widens the net of reg 29/35.
UTJ Jacobs said as much in one of his reg 35 decisions. (was in 1750/2012?)
One of my colleagues is working on building the evidence that UTJ Jacobs mentioned; a lot of Tribunals think that Work Related Activity consists of a couple of interviews a year. That needs to be dispelled; where they make 2 or 3 year review recommendations that ATOS simply won’t hold to (the max period is 18 months according to the Filework Guidance)then ATOS reassess immediately and in so doing, as the reassessment period is less than 12 months that in turn triggers a referral in to the Work Programme. Where there’s the disparity in opinions on review periods it’s feeding people into the Work Programme and thus broadening the scope of WRA beyond those couple of interviews.
Hi all
We have recently been told that in 4 areas around the country JCP appeals teams have been instructed to seek statements of reasons for reg 29/35 FtT decisions.
Certainly on one of my colleagues’ cases it looks like they’re shaping up to appeal against the First tier decision although they’ve not had the statement yet. Although they’ve been a bit cack handed in doing it they’ve suspended the difference between WRAC & SC and have referred for a WFI (naughty I know… we’re on it!)
It would appear to be the more marginal clients rather that my really ill bunch
I worry that someone has a mind to try and stiffen up the application of the exceptional circs as they’re used so often these days. We’d be interested to hear from anyone else who’s seeing similar.
I have been told by a judge at Truro that the Sec of State is going to request SoRs for all reg 29 and Reg 35 cases. Without looking back over cases I cannot confirm that ALL the 29/35s have had requests but it does sem to be cropping up more than it used to.
On a related matter I only seem to be notified when HMC&TS; actually produce the SoR and not when the Sec of State first asks for it, this often leads top confusion with clients who assume that I have been kept up to date- does everyione have this problem or is it just me?
I have not yet received any written reasons for the past 4 or 5 Reg 29/35 decisions, despite being down as Rep throughout.
btw - am I being naive, or does the knowledge of having to produce formal written reasons for the DWP make judges marginally less likely to base a decision on these grounds?
[quote author=“Pete C” date=“1384179273]
On a related matter I only seem to be notified when HMC&TS; actually produce the SoR and not when the Sec of State first asks for it, this often leads top confusion with clients who assume that I have been kept up to date- does everyione have this problem or is it just me?
Certainly that’s my experience. I tend to check with CTS if I suspect a statement’s been requested.
[quote author=“Pete C” date=“1384179273
I have been told by a judge at Truro that the Sec of State is going to request SoRs for all reg 29 and Reg 35 cases. Without looking back over cases I cannot confirm that ALL the 29/35s have had requests but it does sem to be cropping up more than it used to.
Do you know whether JCP have suspended components, or part awards?
The same judge also told me that the Upper Tribunal is now looking unfavourably on representatives letters to GPs in which part of the case we put forward and why is quoted and comments from them requested - does anyone know more about this? I do try to ask only for ‘as appropriate in your professional opinion’. (the judge said he would have done this himself as a Rep!)
Rose
On this particular point, I am coming across one judge only who in Reg 29/35 cases cites MM & DM v Secretary of State for Work and Pensions [2013] UUT 0259 (AAC) paras 158 and 68:
“The British Medical Association’s view is “It is not….the GP’s role to provide any opinion on the patient’s capability to work as part of this (the ESA) process”“.
This is (one of) the JR case(s) recently about whether the WCA process discriminates against those with mental health conditions.
This citation is used during the run up to an appeal, and afterwards on some of those I have asked for leave to appeal with. Not sure why the view of the BMA is relevant to what a local GP has put in a letter, which is their professional opinion on a client they know well.
Is this what your judge is meaning?
The same judge also told me that the Upper Tribunal is now looking unfavourably on representatives letters to GPs in which part of the case we put forward and why is quoted and comments from them requested - does anyone know more about this? I do try to ask only for ‘as appropriate in your professional opinion’. (the judge said he would have done this himself as a Rep!)
RoseOn this particular point, I am coming across one judge only who in Reg 29/35 cases cites MM & DM v Secretary of State for Work and Pensions [2013] UUT 0259 (AAC) paras 158 and 68:
“The British Medical Association’s view is “It is not….the GP’s role to provide any opinion on the patient’s capability to work as part of this (the ESA) process”“.
This is (one of) the JR case(s) recently about whether the WCA process discriminates against those with mental health conditions.
This citation is used during the run up to an appeal, and afterwards on some of those I have asked for leave to appeal with. Not sure why the view of the BMA is relevant to what a local GP has put in a letter, which is their professional opinion on a client they know well.
Is this what your judge is meaning?
Hi
In what context does your Judge rely on that quote from MM? I can feel my old copy of Moule getting a dusting off…
Hi
In what context does your Judge rely on that quote from MM? I can feel my old copy of Moule getting a dusting off…
Hi Dan
Its been given, couched amongst other reasons, in directions before a tribunal, and after for leave to appeal.
The quote below is from a leave to appeal application, where reg 35 was considered but refused by FTT on the basis claimant can attend occassional work-focused interviews and so can cope with what is expected of a claimant in WRAG for Work Related Activity. Claimant’s consultant said attending interviews, training, etc would likely lead to a serious worsening of condition.
In refusing permission, the judge in question says amongst other things:
“With regard to the opinion of the doctor as regards entitlement to ESA the comments in MM & DM v Secretary of State for Work and Pensions [2013] UUT 0259 (AAC) paras 158 and 68: “The British Medical Association’s view is “It is not….the GP’s role to provide any opinion on the patient’s capability to work as part of this (the ESA) process. It is vital…[sic]... that GPs are not asked to provide opinion on the patient for the purposes of receiving employment and support allowance (ESA); doing so could damage the doctor/patient relationship”
Para 68 is really just a quote of the BMA’s opinion. Its not the UT in MM condoning such a view. At least thats what I think…...
Edited for grammar
Hi
In what context does your Judge rely on that quote from MM? I can feel my old copy of Moule getting a dusting off…
Hi Dan
Its been given, couched amongst other reasons, in directions before a tribunal, and after for leave to appeal.
The quote below is from a leave to appeal application, where reg 35 was considered but refused by FTT on the basis claimant can attend occassional work-focused interviews and so can cope with what is expected of a claimant in WRAG for Work Related Activity. Claimant’s consultant said attending interviews, training, etc would likely lead to a serious worsening of condition.
In refusing permission, the judge in question says amongst other things:
“With regard to the opinion of the doctor as regards entitlement to ESA the comments in MM & DM v Secretary of State for Work and Pensions [2013] UUT 0259 (AAC) paras 158 and 68: “The British Medical Association’s view is “It is not….the GP’s role to provide any opinion on the patient’s capability to work as part of this (the ESA) process. It is vital…[sic]... that GPs are not asked to provide opinion on the patient for the purposes of receiving employment and support allowance (ESA); doing so could damage the doctor/patient relationship”
Para 68 is really just a quote of the BMA’s opinion. Its not the UT in MM condoning such a view. At least thats what I think…...
Edited for grammar
It says something quite quite different as well if you read the whole thing:
The British Medical Association, for example, have made it very clear that they do not want to become “guardians of the benefit system”.
“Work Capability Assessments are carried out by health care professionals working directly for Atos Healthcare who are trained specifically to undertake this type of work. The claimant’s GP also has a specific role in the process, to provide a factual report based on information contained within the patient’s medical record. It is not, however, the GP’s role to provide any opinion on the patient’s capability to work as part of this process. It is vital that these two roles are kept separate and that GPs are not asked to provide opinion on their patient for the purposes of receiving Employment and Support Allowance (ESA); doing so could damage the doctor-patient relationship.”
That clearly and unequivocally deals with the issue of GP’s providing medical evidence, in the mention of providing a factual report, so I fail to see what your Judge is getting at to be honest.