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Court of Appeal Decision Mental Health Discrimination.
Is it not the case now that all ESA decisions made by DWP since WCA without asking GP For medical evidence iro mental health unlawful!? If so doesn’t this entitle claimant entitled to any time revision and reinstatement of ESA within schedule 3?
No I don’t think it does. It may be useful in challenging the veracity of individual supersession decisions but I don’t think MM provides for such a bright line as you suggest.
MM can at best deal with individual failings in decision making; I have Counsel’s opinion hiding somewhere telling me that S149 EA 2010 (which we’d need to invoke to have any hope of the bright line you propose) is unlikely to be in play; we’d need to challenge the whole procedure (the Filework Guidance) but it’s a long time since it’s been laid down and likely out of time to challenge.
It’s also useful to note that S3(1) HRA ‘98 might be in play where someone with an MHP’s possessions might be affected but again I think it’s on an individual basis. I’m waiting for a chance to see whether that’s got legs…
No I don’t think it does. It may be useful in challenging the veracity of individual supersession decisions but I don’t think MM provides for such a bright line as you suggest.
MM can at best deal with individual failings in decision making; I have Counsel’s opinion hiding somewhere telling me that S149 EA 2010 (which we’d need to invoke to have any hope of the bright line you propose) is unlikely to be in play; we’d need to challenge the whole procedure (the Filework Guidance) but it’s a long time since it’s been laid down and likely out of time to challenge.
It’s also useful to note that S3(1) HRA ‘98 might be in play where someone with an MHP’s possessions might be affected but again I think it’s on an individual basis. I’m waiting for a chance to see whether that’s got legs…
I am at appeal on Wednesday mornin and was going to challenge the legality of the decision. Don’t forget Article 14, the right not to be discriminated against in relation to any of the other articles.
You’ll find Secretary of State for Work & Pensions & Warwick DC vs OB & JS & JS 2012 [UKUT] 0489 (AAC) helpful then.
here’s a link to Secretary of State for Work and Pensions and Warwick DC v OB and JS and JS…
http://www.osscsc.gov.uk/Aspx/view.aspx?id=3856
the latest judgement on the subject is
http://www.rightsnet.org.uk/news/story/court-of-appeal-rejects-dwp-against-decision-that-claimants-with-mental-hea