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

Any recompense for ‘vulnerable person’ status being missed?

Kurt12
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Welfare Rights Service, Tameside MBC

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A customer of mine has suffered an ESA reduction (i.e. sanction) but unfortunately is outside of the 13 month late MR time limit.  He has a cognitive impairment however and this very likely could adequately explain his lack of ‘compliance’ with WFIs.  Given that the DWP’s ‘Safeguarding and Vulnerability’ work programme provider guidance* requires that the ‘provider undertakes safeguarding activity’ before making a referral for a reduction is there any possibility of challenging the decision (albeit not via the usual MR/appeal route) or getting some compensation? 
I do not know if a work programme provider was involved or if the WFIs were just done at the JC+ office but I’d like to think the same principles apply.
Also, if someone is not already designated as a ‘vulnerable person’** how can it be ensured that this status is put in place for them?
(I know that this question has some overlap with the ‘Mental Health Safeguards thread’ but any help would be appreciated).
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/427708/wp-pg-chap-4b-v1.pdf
**  Defined as “Vulnerable Employment and Support Allowance (ESA) participants are those who have mental health conditions or learning disabilities or conditions affecting communication/cognition” in the guidance.

Paul_Treloar_CPAG
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There’s an article in this month’s Welfare Rights Bulletin by Owen and Corin from Greenwich Welfare Rights which describes how DWP should approach safeguarding in these kind of situations, so maybe grab a copy of that - we’ve just been given our copies so they should be winging their way around the country as we speak.

On the fact of it, it could be something to consider as, when I attended their recent seminar on same, they said that they had had negative decisions overturned some months after the event pretty easily where proper safeguarding, in particular a face-to-face meeting (or core visit to use their DWP term) with clients who were vulnerable had not taken place.

acg
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We have developed a Benefit Safeguarding Alert form to be lodged with DWP to help them to be able to identify vulnerable customers who should be safeguarded.

You can still take action by raising a Stage 1 complaint against the DWP,the Work Provider or both.This can include a request for compensation to be paid.Should the complaint reach the Indepenendent Case Examiner (i.e Stage 3 DWP complaints, Stage 2 Work Provider complaints) ICE have the authority to award compensation where DWP or the Work Provider have failed to do so.

When DWP make a referral to a Work Provider under the Work Programme the term “Safeguarding” should be included in the customer Action Plan and a “warm handover” should be conducted-either a phone call or meeting to ensure that the vulnerability of the customer has been understood and properly recorded…Notwithstanding this, work providers have a continuing responsibility to identify “vulnerable ESA participants.” while the customer remains on the Work Programme.

Whether the Action Plan is currently lodged with DWP or the Work Provider the customer can ask for a Reconsideration of the Action Plan under Regulation 7 of the ESA Regulations 2011 to include recognition of their vulnerability and need for safeguarding and also of any reasonable disability adjustments that may be required.The reconsideration dec ision must be sent in writing to the customer.

DAB
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DIAL Lowestoft and Waveney

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Any chance of having a copy of your safeguarding alert form?

Owen Stevens
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I agree that going through the complaints process is worthwhile. 

Safeguarding should be applied to ESA claimants with mh/LD/condition affecting cognition who have failed to attend a mandatory appointment, to participate in WRA, or (in some cases) to attend a WCA. 

The procedure that should be followed varies according to the agency involved so it would be worth seeing if you can find out whether it was a work programme provider or JCP who applied the sanction.  The guidance JCP must follow is more stringent than that which WPPs have to follow - see the CPAG article for more detail.

Work programme provider guidance chapter 4b was introduced in May 2015 but the responsibility of WPPs to safeguard claimants has existed for quite some time prior to that - I have attached the old version of chapter 6 as it existed prior to May 2015 in case that is useful for you.

I have attached a copy of the safeguarding alert our team is using to try to ensure that DWP and other relevant agencies have information about a clients MH/LD/etc early on in their claim.  You can feel free to adapt it to suit your own service (obviously, please remove references to Royal Greenwich).

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Edmund Shepherd
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Tenancy Income, Royal Borough of Greenwich, London

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Any-time official error revision?

Paul_Treloar_CPAG
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Here’s Owen and Corin’s article from the latest Welfare Rights Bulletin.

Safeguarding guidance: a tool for practitioners

Just to add a little plug, you can subscribe and get 6 copies a year sent direct to you, hot off the press.

1964
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And sn excellent article it is too. We will find it very useful indeed. A colleague and I were agreeing, on reading it the other day, that we have dozens of cases where the DWP has failed to follow their proceedures.

DAB
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Owen - thanks for the link to the form. How do you use it if, as is often the case here, someone has no MH professional involved and will not see GP. Do you put yourselves down as the nominated professional?
Do you ever send the forms with an ESA50 ?

Owen Stevens
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We use it to ensure DWP have info about vulnerability early in a claim as we were finding that problems were often caused by DWP having limited information about their claimants.  It is also useful in giving permission to all agencies to share info with each other in the event of a problem with benefit. 

If the form does not suit a particular client you could put your details down or you could just change the form to suit the client.  The third party details are to assist with the safeguarding procedure that requires notification to a third party.

Owen Stevens
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1964 - 29 October 2015 10:24 AM

And sn excellent article it is too. We will find it very useful indeed. A colleague and I were agreeing, on reading it the other day, that we have dozens of cases where the DWP has failed to follow their proceedures.

Thanks!  Let us know how you get on.

Use of these procedures is far from a panacea but can have a drastic positive effect in some cases.

Dan Manville
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As regards JCP liaison with Social Services; we’re not sure of the scope, however the “the Minister of the Crown exercising functions in relation to social security, employment and training” is nominated as a “relevant partner” for Adult Safeguarding under the Care Act 2014.

A recent FOI tells me that no guidance has been issued to JCP with that in mind and I am waitinf for a reply to another as to whether the minististers have taken any steps; I have a gut feeling that it might be quite imprortant though.

Owen Stevens
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Dan Manville - 30 October 2015 09:13 AM

As regards JCP liaison with Social Services; we’re not sure of the scope, however the “the Minister of the Crown exercising functions in relation to social security, employment and training” is nominated as a “relevant partner” for Adult Safeguarding under the Care Act 2014.

A recent FOI tells me that no guidance has been issued to JCP with that in mind and I am waitinf for a reply to another as to whether the minististers have taken any steps; I have a gut feeling that it might be quite imprortant though.

How are you getting on with this Dan?  It looks really interesting, I had a quick look when you posted this originally but haven’t had much time to think about it.

ranaway
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Welfare Rights, North Tyneside Disability Forum

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I’m particularly concerned about a client with a learning disability. He’s been hit with a large JSA over-payment dating back to 1999 after the standard IUC for fraud.

In the appeal bundle, there’s JCP computer system print-out of a referral of the overpayment to debt recovery. Under the heading of ‘Additional Information’ there’s a box saying “vulnerable customer” and selected is ‘not vulnerable”.

At IUC claimant had an appropriate adult present in respect of his learning difficulties, and they acknowledged he cannot read and write.

How can this ‘vulnerable person’ status be missed by JCP? I guess I’ll write a complaint to get it addressed…

[ Edited: 30 Nov 2015 at 01:26 pm by ranaway ]
ranaway
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Paul_Treloar_CPAG - 29 October 2015 09:22 AM

Here’s Owen and Corin’s article from the latest Welfare Rights Bulletin.

Safeguarding guidance: a tool for practitioners

Just to add a little plug, you can subscribe and get 6 copies a year sent direct to you, hot off the press.

Looking at this was very useful. Unfortunately I came across this point:
The safeguards do not apply to jobseeker’s allowance (JSA). JSA claimants with a mental health condition will not be protected by the safeguards. The Oakley Review recognised that many JSA claimants are vulnerable.

My client was on JSA…

Dan Manville
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Owen Stevens - 27 November 2015 01:08 PM
Dan Manville - 30 October 2015 09:13 AM

As regards JCP liaison with Social Services; we’re not sure of the scope, however the “the Minister of the Crown exercising functions in relation to social security, employment and training” is nominated as a “relevant partner” for Adult Safeguarding under the Care Act 2014.

A recent FOI tells me that no guidance has been issued to JCP with that in mind and I am waitinf for a reply to another as to whether the minististers have taken any steps; I have a gut feeling that it might be quite imprortant though.

How are you getting on with this Dan?  It looks really interesting, I had a quick look when you posted this originally but haven’t had much time to think about it.

It’s waiting for another candidate to press it home; last time it was in issue I shouted loudly enough that PIP did what I was telling them to do.

My FOI has not been responded to (funnily enough I’ve just got a reminder from whatdotheyknow)

After the CPAG seminar on Monday I am hoping to build some links with our local public law solicitors and it’s a live issue I am interested in litigating when the right candidate pops up.

[ Edited: 2 Dec 2015 at 01:22 pm by Dan Manville ]