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WRAG to Support appeals
Here in the north east, where the maddest ideas are tried out first it seems, we have the latest incarnation.
Tribunals are starting to give warnings to people appealing for the Support Group, that they may lose their entitlement to WRAG.
Despite protestations that this is ultra vires and that the process is entirely different, certain judges are drawing analogies with DLA where of course this system has applied for ages.
Does anyone else have any experience of this or has anyone taken such a case to the Upper ?
Here in the north east, where the maddest ideas are tried out first it seems, we have the latest incarnation.
Tribunals are starting to give warnings to people appealing for the Support Group, that they may lose their entitlement to WRAG.
Despite protestations that this is ultra vires and that the process is entirely different, certain judges are drawing analogies with DLA where of course this system has applied for ages.
Does anyone else have any experience of this or has anyone taken such a case to the Upper ?
Are you sure it is ultra vires, I would have thought that if a tribunal hears evidence that would lead them to doubt that the award of any part of ESA is not correct they have the power to make a finding on it provided they warn the appellant and give them time to make further submissions/withdraw.
I have known this happen on two occaisions, one of them being when some of the evidence in the SG appeal flatly contradicted the entitlement to the WRAG! The judge warned the appellant and we withdrew.
I don’t think that such a warning is ‘ultra vires’. To my understanding this terms gets used when it may be argued that a regulation is being used to do something beyond the power of the legislation that it is supposed to be subordinate to. On checking the term there is a translation that it means ‘beyond powers’ and, in terms of a tribunal considering an ESA case, I do not think that it is beyond the power of a tribunal to turn a WRAG decision into a completely fails to pass the WCA decision.
The motivation for many support group appeals is that a claimant has had their ESA stopped as they have now had their 365 days of time limited contribution based ESA and they would (of course) like to have this back. They should be aware however that, if they fail their WCA completely, they will break their contribution link and never be able to get contribution ESA again (save for working again). In this respect I am grateful that a warning is given as, sometimes, the possible consequences are not understood until a judge also mentions it. In some such cases it would seem that it would be better to wait for the next ESA50 and try again (or request a supersession where appropriate), particularly where the evidence is not very supportive. I have, for example, had an appellant put back into the support group and paid again following another medical examination whilst waiting for their appeal.
Even in a DLA case, the Tribunal’s power to start again with a blank sheet of paper is not unlimited. The Neil Wood v Sec of State for W&P case is the definitive one on this issue.
- if the claimant is disappointed with the outcome on a new claim and appeals, all options are on the table and if the Tribunal concludes that the evidence supports a less generous decision than the original then that’s what will happen
- but if the claimant applies for supersession during an established award, the DM cannot use that application as an excuse to revisit the merits of an earlier decision on an unrelated issue which would otherwise be final - Sec of State cannot just arbitrarily change huis mind about something. By extension the Tribunal stepping into the DM’s shoes is constrained in the same way
- however, if the evidence relating to the supersession application suggests that things have changed in relation to the original matter then the outcome could be worse than what the claimant already had
In the Wood case, if I remember rightly the claimant was already on DLA(m) and applied for a supersession to add the care component. Not only was his application unsuccessful, the DWP also took his mobility award off him as well. The Court of Appeal said the DWP could not do that unless there would have been free-standing grounds anyway without Mr Wood’s supersession application.
It seems to me that principle would extend to ESA: if the claimant is already on the WRA component in ESA(ir) and applies for supersession to convert it to Support, the application and any subsequent appeal are only concerned with that narrow question unless independent grounds to interfere with the LCW determination happen to arise at the same time. If they don’t, the original LCW determination has to be left intact even if DWP feel with hindsight that it was maybe a generous decision at the time.
Then again, I seem to remember someone arguing on here within the last couple of months that LCW is more than just a steppiong stone on the way to an ESA outcome decision: it is an outcome in itself because it is a legal status that has consequences beyond the ESA award (in HB for example where “credits only” LCW has a variety of passporting effects). Was it Tom H? If so that would perhaps add weight to the argument that in a self-contained ESA(ir) dispute about which component the claimant should get, the question whether s/he should really be getting any flavour of ESA at all is out of scope.
thanks for the info people. I am told by one of the full time judges that there is a recent Upper Tier decision on this effectively saying that as the entitlement to WRAG is not before the tribunal then such a warning cannot be given. I am awaiting a copy of said decision and when I find it will paste a link or the case reference on here.
The heart of the matter is whether the tribunal has jurisdiction over an issue not raised by the appeal. The answer, of course, is yes and no. For the latest, see here.
I was searching in the briefcase for something else, and found this snippet in the description of CE/2343/2011:-
An appeal is a rehearing, rather than a review, and a tribunal can make any decision the decision-maker can make. In these circumstances, it is difficult to argue that the claimant had a ‘protected right’ to the 6 points awarded by the decision-maker. Most of the case law on ‘warnings’ to appellants about a less favourable outcome related to disability living allowance, where there were doubts about an award of a component which had not been appealed. It is difficult to apply this to ESA where the appeal was against the loss of all entitlement.
Although a formal warning at the start of a hearing that an appellant might lose points was not needed, the appellant should have been put on notice at some stage, that the tribunal had doubts about the points awarded by the decision-maker, so that he had the opportunity to address this. The tribunal erred in law by failing to do this and also failing to properly explain why the claimant’s score was reduced to nil. There were also inadequate facts and reasons relating to the incontinence descriptors.