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 Post subject: Clause 99
PostPosted: Sun 28 Sep, 2014 5:45 pm 
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ephemerid wrote:
This is a very long post - but worth reading if you are a claimant or otherwise interested in social security.

Clause 99 of the Welfare Reform Act came into effect for Universal Credit and PIP in April.

From 1st.October, it will affect all other working-age benefits too.
These include - JSA, ESA, Income Support, and DLA.

Clause 99 involves the removal of the automatic right to appeal a DWP decision on entitlement.

I've read all the legislation, consultation, and press releases; I know this stuff backwards, and it's very worrying.
Anyone who wants to appeal a decision will now have to wait for Mandatory Consideration of Revision - this is what is usually called reconsideration, and it applies to JSA claimants who want to appeal a sanction or disallowance, ESA claimants who want to appeal a Fit For Work or WRAG decision, Income Support claimants who are subject to jobdearch conditionality, and DLA claimants whose support is stopped routinely after a FFW or WRAG decision on their ESA.

I'll concentrate on ESA here - but the general idea is the same for everyone who claims any of the above.

Entitlement to ESA is determined by decision makers who are required to use evidence supplied by the claimant and by Atos; DWP allocates the claimant to a group (WRAG or SG) if they judge them incapable of work.
The DM uses the ESA85s (Atos summary) to do this - if the summary says "could be capable of work in the medium term" it is interpreted to mean WRAG for 6 months. Atos never say that they recommend WRAG or whatever, they use words like this so they can claim they are not responsible for the decision.
This allocation is time-bound - the options for the DM are: 3,6,9,12,18, or 24 months. No flexibility, 2 years maximum, irrespective of the clinical condition and irrespective of permanence.

This is input to the system, which will automatically generate a review at the time set by the DM - this goes to "Medical Services" ie. Atos, who start the assessment procedure all over again.
Atos have a Service Level Agreement which specifies that the process, from the date of review until the report of the assessment is sent to DWP, should take no longer than 56 days; claimants must produce their forms and evidence in a month, but Atos very rarely complete their part of the process within the time limit.
Atos decides whether, when, where, and how the claimant is assessed; they report their recommendations to DWP; and the DM makes the decision with an in-house Atos person to help with any terminology they don't understand.
DWP then inform the claimant of their decision - sometimes they phone and "explain" and sometimes they write and sometimes you find out when the benefits stop with no warning. Claimants are entitled to a full verbal explanation and a full written explanation, but not many claimants know this and DWP don't always provide them.

Currently, claimants have a month from the date of the decision to appeal - they have to ask for and complete Form GL54 within the time limit, or provide a good reason why their appeal should be considered out of time.
DWP then set the appeals process in motion, and they do a reconsideration as part of that - they rarely change the decision at this point, especially if you have not provided new evidence. (It's usually the case that claimants' grounds for appeal are based on DWP not using the evidence they have already, and there's not enough time to supply more within the limit)
DWP must complete the reconsideration within a month, and this limit can only be extended if they insist on the claimant obtaining new evidence. Which they invariably do.
DWP are responsible for - writing a Secretary of State response (ie. the legal grounds for their decision), collating all the papers (the S of S response, ESA50, claimants' evidence, Atos reports, and any other correspondence) and submitting it to the Tribunals Service. They must send copies to the claimant and any other representatives.
Claimants will get "appeal rate" ESA (basic rate) while they wait for the hearing.

Clause 99 changes all this.

From 1st.October, there is no automatic right to appeal. On receipt of the decision, the claimant must notify DWP that they want to appeal, and DWP will conduct a Mandatory Consideration of Review (reconsideration) and they have no time limit for this - they can take as long as they like.
During the MCR, claimants will not get any ESA. The rationale for this is that if the claimant got a FFW decision, and it isn't changed, the appeal rate payments would constitute an overpayment; and if the claimant got a WRAG decision, the MCR could change this to FFW, and that would also generate an overpayment.
Chris Grayling refused to reconsider this, because he said that there was a financial incentive for claimants to appeal; he said that removing benefit for the MCR period would cut the numbers appealing frivolously.

If the claimant decides to claim JSA, the appeal process will stop. A claim for JSA effectively implies that the claimant agrees they are fit for work, and they may no longer claim JSA and appeal an ESA decision at the same time as they can now.
If they do, they may not get JSA either - any doubt on availability (regular hospital treatment, say) and no JSA; any restrictions on work or whatever due to health, and no JSA; plus the usual jobsearch/sanctions regime now applies.

If the claimant gets a WRAG decision and decide not to appeal, and they are on income-based benefit, the time limit of 52 weeks is applied retrospectively and they could lose it anyway. All WRAG claimants are now subject to jobsearch conditionality and must attend 6 work focussed interviews, with immediate eligibility for referral to the Work Programme, and immediate eligibility for workfare which could be indefinite. This is all mandatory and failure to comply will result in sanction.

FFW and WRAG decisions automatically generate an electronic letter to any other agency paying any other benefits.
This applies to DLA (and PIP) so it is routine for DLA to be stopped on the grounds that capability for work or work related activity implies functional ability in the activities of daily living - even though the qualifying criteria are different.
DLA disallowances will also be subject to Clause 99 on 1st.October.

Also - one of the other provisions of Clause 99 is that DWP are no longer responsible for lodging the appeal.
Claimants who decide to pursue an appeal after the MCR will now have to lodge the appeal themselves. This is called direct lodgement, and they will have to collate and distribute all the documents as above - and hope that DWP provide what they need, and for that they need to know what to ask for. They have to do all this with no legal aid; and the Tribunals Service will adjourn any hearing if the paperwork is not correct and all parties have the same documents at least 28 days prior to the hearing.
Tribunals Service panels are not there to assess capability for work - they are there to ensure that the decision under appeal was or was not reached lawfully. The role of the judge is to determine if the decision was fair, the claimants' evidence is assessed on consistency, and the DWP evidence is assessed on adherence to Social Security regulations.
There is no legal aid for the Lower Tribunal, which is where the appeal will be heard first - so claimants will have to find a way to get the help they need. If they go on to the Upper Tribunal, they can ask for legal aid.
Many CABs have lost a lot of their funding, and many no longer employ experts - I know of several cases where claimants were given a volunteer to help them, and the advice given was completely wrong. CABs could claim back the costs of legal experts but now they can't, and that means that CABs are relying on volunteers, many of whom have no more knowledge or experience than the man or woman in the street.

AS DWP have no time limit for conducting their Mandatory Consideration of Review, they can delay it for as long as they like, and can waste endless amounts of time asking for new evidence or GP reports or whatever.
At the moment, DWP regional Benefit Delivery Centres are not coping with the volume of decision making and are sending cases to the Benefit Integrity Centre in Chelmsford. Many cases are claims like mine - there is now, as ESA has been going since 2008, a cohort of people who are churning over again and again because the limits set on claiming are 2 years or less. There are also people being converted from Incapacity benefit to ESA, also subject to the same limits.

The Public Accounts Committee minutes from earlier in the year state that more than 700,000 ESA claimants were assessed in 2011-12; an Atos member of staff has told me that DWP referrals to them for assessment have increased "markedly" in the past few months, at a time when new claims for ESA have fallen by 1.8% over the year to less than 2.5 million.
There could be a few reasons for this.
Firstly, Atos are supposed to be seeing 11,000 IB claimants a week and converting them to ESA. In practice, many IB claimants are not being seen at all and allocated to WRAG. I think the rise in successful appeals may be attributable to this, as IB claimants are on long term benefit for a reason, ie, they were assessed under the PCA system as being unlikely to ever work again due to their permanent/chronic health problems.
Secondly, Atos are now getting more and more people for reassessment because of the DWP time limits for review. Even if people get SG for 2 years, by now some of them will have churned over three times since ESA came in; and given that the majority of decisions are allocations for 6 to 12 months, some people are being reassessed again and again (in my case, 4 times in 3 years).

Finally - and this is what I'm talking to St.Steve about - the backlogs could be deliberate.
If Atos are getting an increase in referrals (as a staff member told me) and are failing to comply with their SLA of 56 days, anyone whose assessment is held up now (like me) won't get their DWP decision until AFTER Clause 99 comes in.
I wouldn't be at all surprised if DWP are under orders to swamp Atos with referrals - Atos are already behind, and are having to retrain all their staff - so that claimants who are waiting for assessments will lose their automatic rights to appeal.

I'm doing some work on this at the moment, and I'll let you know what transpires.

DWP did a consultation earlier in the year, which was a complete sham. Contributors to it were all concerned that claimants would be left destitute while waiting for MCR if they wanted to continue with ESA; they felt that the policy would force people into claiming inappropriate benefits, fail to qualify, and be destitute; they felt that DWP answers on how long claimants could expect to wait were not satisfactory; they were unhappy about the direct lodgement rules and loss of legal aid; and they wanted an impact assessment which the DWP refused to do. Despite all this, the final report on the consultation refused to consider any of this and the policy remains unchanged.
DWP insist that the reason for this Clause 99 is to speed up the process of reconsideration so that fewer people appeal; DWP says that if they can impose a MCR they will be able to make the right decision much earlier in the process; and DWP are attempting to sell this as a fair and speedy solution to the problem of people waiting months on end for Tribunal hearings.
I do not believe this for a moment.

I am inclined to think that the real agenda behind this is to stop claimants appealing duff decisions and reducing the cost of appeals; the savings in benefits now not being paid will be significant; and most claimants will fail to qualify for other benefits because they are too ill to work but not (apparently) ill enough to claim ESA.
When the claimant count goes down (it will) and the appeal rate goes down (it will) IDS and his henchmen will trumpet this as a resounding success, they will claim that the "reforms" are working, and it will be a lie. Again.

My ESA50 was issued on 17th.June. It is now 70 days since the 56-day process began, and I have no idea if I am to be reassessed at all, let alone when, where, or how.
It is not likely that I will be given a WCA appointment (if I have to have yet another one) before mid-September; by the time DWP make their decision, it will be October.
If this happens, I will make an unholy fuss. I have already had a go at Atos, and I intend to keep up the pressure. I am also writing to DWP to express my concern.

I am a very lucky woman.
I have brains, I have access to the internet, I have knowledge and skills and experience.
However ill I am, I can fight my corner, and I have a lot of support and good people around me.

I am fearful for those who do not have my advantages.
I am expecting even more horror stories when this iniquitous piece of legislation starts to bite.

Neil Kinnock was right - he warned us not to be ill.

If anyone has any questions about this, please let me know.


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 Post subject: Re: Clause 99
PostPosted: Sun 28 Sep, 2014 5:45 pm 
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stressed46 wrote:
I have just read your post regarding clause 99 of which, I had no idea about before yesterday. I too am a very intelligent women and was struck down by a chronic condition called Fibromyalgia which, in itself has many horrible symptons such as depression, IBS, severe pain all over and the worst in a way fatigue. I was given ill health dismissal 2 years ago by my wonderful employers Marks and Spencer! Since then I was put onto ESA and it has taken me till June of this year to get a home assessment from ATOS. The doctor who came to see me was appauling. She tried to sell me a health drink throught pyramid selling during the assessment, I have consequently placed a serious complaint about her which, is still going on apparently!

But to get to the point, I was placed into the WRAG and went to the work focused interview they send you to after you are placed in this group. The advisor was ok enough and acknowledged my illness and told me the best thing I could do was to ask for a reconsideration as I was obviously not well enough to be in the WRAG. I have spoken to a number of different people recently who know about the benefit system and felt I was doing the right thing by asking for a reconsideration. I sent my reconsideration letter and other relevant information off just over a week ago and thought nothing more of it until I received a letter from my local council yesterday (a saturday, typical!) saying they had been advised that my ESA had ceased and therefore further housing and council tax benefit payments had been suspended. They sent a form which, is a book to fill in asking for bank statements proof of income etc so that they could do a recalculation of my benefit. I was horrified and thought this is obviously a mistake but, it played on my mind and only having the internet as a useful resource over the weekend was even more horrified to find endless articles about Clause 99. There are varying opinions on when this actually comes into force for ESA and I was particularly interested in your post as you say you are very knowledgable about the system and that this mandatory revisation doesn,t come into effect until 1st October and yet having the situation I have I am very fearful that they have stopped my ESA payments. Not one single person advised me that this might be the case when I told them I was going to ask for a reconsideration, even the advisor at the jobcentre. I have a husband who lost his job a few years ago and can,t get another job to save his life and it,s not for the want of trying. I have a daughter who lives at home in her final year of uni, a 19 year old son who works and earns next to nothing and a disabled son who I get DLA for and whom is very vulnerable. I am in a terrible state and if it weren,t for my disabled son I think I would take some pills to end it all. There is no way we can pay a £1,200 a month rent and survive with next to no income.

I would be so grateful if you can give me any advice on this.

I suppose it could be an error but, I have my doubts. I will consequently phone and speak to the bastards tomorrow to find out.

This country is more like 1913 not 2013 thanks to David Cameron and his ruthless regime!


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 Post subject: Re: Clause 99
PostPosted: Sun 28 Sep, 2014 5:45 pm 
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ephemerid wrote:
Hello stressed46.

Any request for a reconsideration can change a decision. If DWP looked at your case again, they can change your original WRAG award to Support Group, or Fit For Work. DWP should inform you of this in writing.
Until you know what they have done, there's not much you can do.

Something else might have happened - if you have been claiming contributions based ESA for more than 12 months, you may have run out of entitlement. This 12 months is applied retrospectively, so getting a WRAG decision can stop benefit immediately - you should be informed of this in writing, and given the option of claiming income based ESA (means tested).
Many people on long-term IB or ESA have fallen foul of this - if you've claimed IB or ESA for a while, you will have had more than the allowed 12 months and a WRAG decision will cause this new rule to apply.

When you phone them, you will be put through to a call centre - the operator is not likely to be able to answer your questions. Find out first if the benefit has been stopped (it's possible that the council made an error) and if it has, tell them that you want the decision maker to call you back with a full explanation.
The operator will say that they will pass on your message to the appropriate section, which they do by email - insist that they read back the email they are sending so that the right questions are asked. Those questions are: Has the reconsideration been done; what was the result; if the ESA has been stopped, what was the reason (eg. was it a FFW decision after recon or was it WRAG running out); why have you had no explanation of this by phone or in writing.

When you know what's what, you have several options.
If the benefit was stopped under the 12 months rule, you can apply for income based WRAG ESA, and have you HB/CTB restored.
If it was stopped by a FFW decision after recon, notify your intention to appeal; if it's still WRAG (paid or otherwise) after recon, notify them of your intention to appeal.
Clause 99 does not apply until October 1st, so if you appeal you are entitled to appeal rates while you wait for the hearing - it's very important you do this immediately, so that the new appeal system does not apply to you.

If it was me, I'd appeal anyway. WRAG ESA is time-limited and has jobsearch conditionality which is not what you want or need.
It's worth fighting for Support Group status now, because after October the system will be much harder to navigate.
You will be told that you have to supply new evidence for the recon, ( and unless you know what basis the decision was made on, you don't know what they've used or if they've used it correctly) and you'll be told all sorts of nonsense by DWP in order to avoid paying what you are entitled to. The helpline operators are not trained and don't know much, so insist on speaking to the decision makers.
I suspect that the recon hasn't been done yet - it's only a week since you sent it in and DWP is currently snowed under with decision making work which they are well behind on.
That's why you need to find out exactly why the benefit has been stopped - but whatever the reason, you should not be in WRAG anyway, so appeal while you still can.
Ask the questions I've suggested, and keep notes - who you speak to, times, dates, etc. and ask for copies of your Atos report, the Atos summary and recommendations, and any decision makers' documents.

Good luck - and if you have any more questions, please let me know.


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 Post subject: Re: Clause 99
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stressed46 wrote:
Hi and thanks so much for your reply. It was very informative. Would you believe it, it was an error by the council! DWP assured me my payments haven,t been stopped and I made sure someone from ESA called me back to confirm this. Basically when I was put into the WRAG it threw my details off the system and they had to make a payment to me manually on the 30th July but, they put my details back on the system the same day. So basically the council were acting on info on their system from the 30th July and hadn,t bothered to check that was still correct on the 28th August when they sent the distressing letter I received last Saturday. The council were a nightmare and have spent all day sorting it out. ESA sent them an email in the end, only for the council to say they had checked their system and it said my payments for ESA were live. Their attitude was appealing and the DWP were actually really helpful. I did get a copy of my ATOS report before I asked for a reconsideration and that was a joke. Most of the things in it were not true or not even discussed. So will definitely appeal when the reconsideration fails which, I,m sure will be the case.

I also have to do an appeal for DLA which, I applied for in April, so it is still being classed as DLA as I got in just before it changed to PIP. The reconsideration failed for this already. But I have an appointment at the CAB this Friday 6th with a benefit specialist to help me do the appeal. Every reason they turned the DLA down is ridiculous and it,s as though they haven,t even read it.ie. you do not need someone with you to go out as you don,t suffer panic attacks. You just need reasurrance and support.
Yet on the form I clearly stated that I need someone with me to go out because I suffer severe panic attacks. Ridiculous! Do they think people choose to be I'll and do this to pass the time. Well I,m not hopeful but have to try, as I will have to reapply under PIP.

Thanks so much once again and your advice is so appreciated.


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 Post subject: Re: Clause 99
PostPosted: Sun 28 Sep, 2014 5:46 pm 
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ephemerid wrote:
Well, that's par for the course, stressed46.

I'm glad you've got the rent sorted, at least.

Re. Appeal - It's good you've got CAB onside. I had to appeal the disallowance of DLA when I got a WRAG decision - the assumption is that if you are considered capable of work or work related activity, you are not disabled enough to need DLA even though the qualifying criteria are different. It's all bollocks, and designed to make life impossible.

It's well worth appealing, -especially now, while you can still do it without having your benefits stopped.
There is some brilliant advice on blacktriangle and I recommend you read it.
From what you have said, I think you satisfy regulations 29 and 35 - these say that if a FFW or WRAG decision on ESA would put you or others at risk, you must be found incapable of work. That's all or any work. Blacktriangle have a search button for their archive which if you put in the regs will take you to template letters for this.

PIP descriptors are pretty draconian and it's worth looking them up so you can fill in the forms and make your appeal accordingly.
You'll find them with a good guide for claiming at disabilityrightsuk.org/personal-independence-payment-pip

Good luck - let me know how you get on.

If you'd rather not discuss this openly on the forum, you can PM me here if you like and I'll get back to you.


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DavidW wrote:
I know this thread is a little old, but I landed up here via a comment on The Guardian made within the last 48 hours. As a disabled person and law student, I wanted to correct some factual errors and give links to the law itself. Most references to the law are hyperlinked to the appropriate entry on legislation.gov.uk.

I am struggling onward with my studies in the hope of being able to use my eventual degree to help others in some way. My dream is to qualify as a solicitor, though this depends on finishing my degree, finding the funds and strength for an expensive and demanding postgraduate course, then finding someone who will employ me as a trainee solicitor when I haven't been well enough to work for years and there's a vast oversupply of potential trainee solicitors at present. If I am unable to qualify as a solicitor, I am sure I'll find ways to use my eventual law degree as a volunteer.


THE ENABLING PROVISION

The amendment that gives ministers power to introduce mandatory revision before appeal is sections 102(2)-(4) Welfare Reform Act 2012 (not clause 99). This inserts new provisions into section 12 Social Security Act 1998 effective from 25 February 2013 (article 2(2) and schedule 2 paragraph 37 The Welfare Reform Act 2012 (Commencement No.8 and Savings and Transitional Provisions) Order 2013 (SI 2013/358) refers).

However, this amendment is merely an enabling provision - it has no effect until brought into operation by secondary legislation, as can be seen by the wording of the new s. 12(3A): "Regulations may provide that...".


MANDATORY REVISION BEFORE APPEAL - UC, PIP, JSA & ESA

The secondary legislation allowing imposition of mandatory revision before appeal for UC, PIP, JSA and ESA is regulation 7 of The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 (SI 2013/381). Note that, pursuant to regulation 7(1), mandatory revision before appeal only applies when the written notice of a decision includes words to the effect that the Secretary of State must have considered a revision application before the right of appeal to the First-tier Tribunal exists.

Pursuant to regulation 1, regulation 7 came into effect in relation to PIP on 8 April 2013, and the other three benefits on 29 April 2013. The mention of "remove references to an income-related allowance" in regulation 1(3)(a) and (b) merely reflects that UC takes over from income-related ESA and income-related JSA in areas where UC is operational.


MANDATORY REVISION BEFORE APPEAL - OTHER BENEFITS

The secondary legislation allowing imposition of mandatory revision before appeal for all other benefits is regulation 4(2) and (3) The Social Security, Child Support, Vaccine Damage and Other Payments (Decisions and Appeals) (Amendment) Regulations 2013 (SI 2013/2380). Again, mandatory revision before appeal applies only when the written notice of decision states mandatory revision before appeal applies. Pursuant to regulation 1(2), these amendments became active from 28 October 2013. Other parts of these Regulations brought in corresponding amendments to the child support and vaccine damage payment schemes from the same date.


DIRECT LODGEMENT OF APPEALS FOLLOWING MANDATORY REVISION

The changes in the Tribunal Rules implementing direct lodgement for cases involving mandatory revision before appeal is found in rules 25 and 26 of The Tribunal Procedure (Amendment) Rules 2013 (SI 2013/477). Pursuant to rule 1(2)(a), these changes came into effect from 8 April 2013.


THE EFFECT OF THESE CHANGES

Almost every claim made to a court or tribunal is lodged directly with the court or tribunal. The reason benefit appeals went via DWP was to alert DWP to the appeal in the expectation DWP would reconsider the decision. This reason disappears under mandatory revision before appeal, so it is unsurprising that mandatory revision before appeal cases will use direct lodgement.


Mandatory revision before appeal forces the claimant to take up their entitlement to give input to a revision process. The revision process has historically been much quicker than appealing to the First-tier Tribunal, as well as being less stressful - but there is a tight time limit to make a revision request (4 weeks, plus a further 2 weeks if you write requesting a written statement of reasons because one was not supplied) and the entire decision-making process seems hopelessly bogged down for most benefits at present. Nevertheless, it is in everyone's interests to bring cases to a swift conclusion without involving the Tribunal Service whenever possible.

I cannot be the only claimant who has successfully used the process of requesting a written statement of reasons, before writing back rebutting those reasons using the evidence I had previously supplied and requesting revision. If you requested revision and failed to achieve what you wanted, you still had the right to appeal to a tribunal - in this scenario, you could get the written statement of reasons for the revised decision, which would likely be the arguments the Secretary of State would put before a Tribunal, and construct your Tribunal submission around those reasons.


When claimants appealed directly to the First-Tier Tribunal without requesting revision of the decision first, DWP would routinely revise the decision.

If DWP revised the decision and found in the claimant's favour, they would usually lapse the appeal and it would not therefore be heard before a Tribunal.

If DWP revised the decision and there was no change, they sent the papers to the Tribunal Service.

If DWP revised the decision and made a new decision that was unfavourable to the claimant, the revised decision was implemented and the claimant was invited to make further representations within a month. If the claimant made further representations, these representations informed a second revision process. The case was only sent on to the Tribunal Service if the claimant didn't respond within a month, the claimant made a written request for the papers to be sent to the Tribunal Service anyway, or the second revision process failed to change the first revision decision. Any of these scenarios involved delay and the claimant (or their representative) going to the trouble of constructing a Tribunal submission on a different decision to that ultimately put before a Tribunal. Mandatory revision before appeal prevents any of these undesirable scenarios.


The key thrust of these changes is neutral in character and might be in the claimant's favour in some circumstances. However, as well as the potential for mandatory revision to introduce additional delay, there are two nasties lurking within these changes.


NASTY 1 - CLAIMANTS WISHING TO CHALLENGE A DECISION MUST ENSURE DWP RECEIVES A REVISION REQUEST WITHIN FOUR WEEKS, AS A DECISION REJECTING A REVISION REQUEST FOR BEING LATE LIKELY ENDS THE APPEAL PROCESS

If the decision-maker rules a late revision request to be inadmissible, it is likely to be impossible to pursue that claim further under mandatory revision before appeal.

Under the old system, you could make a late appeal application and the Tribunal Service made its own decision whether there was good reason to allow the late application to proceed. The Tribunal had greater latitude to admit a late appeal than the Secretary of State has to admit a late revision request.

Under mandatory revision before appeal, there is no right to appeal unless a revision has taken place. When a decision-maker rejects a revision request as late without good reason, any appeal is likely to be rejected without being considered because the Tribunal lacks the power in law to consider the matter. In these circumstances, the only way to take the matter further appears to be via judicial review of the decision rejecting the revision request. This involves a High Court application that is likely to be far beyond the capabilities of anyone other than a practising lawyer. Judicial review is unlikely to help in any event: it can only be granted on a limited number of grounds recognised by the courts, and the usual outcome of successful judicial review is the original decision being quashed and sent back to the original decision maker to make again.


In practice, this means that claimants must ensure their revision request is received by DWP before the expiry of the four week window, or they should expect to lose all means of challenging the decision. The only exceptions are if you successfully show "special circumstances" and meet the other legal requirements for a late revision request to be accepted, or if you successfully invoke the supersession route (which is usually second best to revision, as it involves a new decision based on a material change).


I believe taking action within four weeks may well be beyond many claimants. Following the removal of Legal Aid funding from all welfare rights matters (other than appeals to the Upper Tribunal or the courts, either of which are only possible on points of law) in April 2013 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the situation is dire for unsuccessful claimants needing to request revision or appeal.

The majority of Legal Aid money spent on benefits matters went to organisations like the CAB. The loss of this Legal Aid money, together with much of the discretionary welfare rights funding from councils (who are struggling to fund their statutory services and who cannot afford the luxury of much discretionary spending), has led to advice organisations having to let go of many of their paid welfare rights advisers, also it has taken away the funding advice organisations could use to obtain evidence and pay for representation at tribunal hearings.

The welfare rights services that remain are staffed mainly by volunteers, who are of variable quality, and are totally swamped by the workload. The chances of getting a face to face appointment within the four week revision window is slim to non-existent in many areas, and even telephone advice can be hard to come by.


NASTY 2 - NO RIGHT TO ESA PAYMENTS PENDING REVISION

The other nasty is that ESA is payable when an appeal is pending, but not whilst a revision request is pending. Before the introduction of mandatory revision before appeal, this allowed ESA claimants to give up their right to revision and appeal directly to the First-tier Tribunal in order to continue receiving payments whilst an appeal decision is made. The cost in doing this was that the revision process was likely to take place and reach the same decision as before following receipt of the appeal, as the claimant had made no submission to the revision process. Still, for many, the loss of the opportunity to engage with the revision process was a price worth paying.

Now that mandatory revision before appeal is being introduced, an ESA claimant must be able to survive the reconsideration period with no ESA or JSA in order to pursue a "fit to work" ESA decision. The Social Fund was abolished via another of the Welfare Reform Act 2012 changes, so that route to stopgap money no longer exists.


There was abuse potential in the old system, in that a claimant could attempt to string out an almost hopeless ESA case for several months until a tribunal hearing took place, remaining on the initial ESA rate for all this time whilst not eating in to the six months allowed on contributions-based JSA. (I say almost hopeless, because I would expect the First-tier Tribunal to accede quickly to the Secretary of State's request to strike out a completely hopeless case).

Arguably, the correct approach to tackling this abuse window would have been to ensure decisions are made quickly and accurately (some hope, I know), for First-tier Tribunal hearings to happen with minimal delay, and to give the First-tier Tribunal the power to order repayment of all ESA should it find the appeal to have been vexatious or an abuse of process.


Instead, ministers have come up with a system that will force many claimants to claim JSA in order to have any money to eat and stay warm. As JSA can only be paid to those who do not have limited capability for work, you represent you are fit for work when claiming JSA, so a successful JSA claim precludes an award of ESA for the same period. By claiming JSA to have money to live off, it becomes impossible to establish an ongoing entitlement to ESA on appeal, and the amount of ESA in dispute is then so low that it becomes pointless to pursue an appeal.

I hope that a challenge is brought to this system under human rights legislation. On a quick glance, there appears to be a possible claim under Articles 6 (right to fair hearing), 8 (right to respect for private and family life) and 14 (right not to be discriminated against in respect of the application of other Convention rights) of the European Convention on Human Rights and sections 3 and 6 of the Human Rights Act 1998, though I haven't researched this direction in any detail.


A COUPLE OF POINTS ABOUT THE FIRST-TIER TRIBUNAL

The Secretary of State's response to a tribunal is not the written statement of reasons for the appealed decision - that is usually a separate document. The response is a "friend of the court" document, setting out those points where the Secretary of State disagrees with the claimant's submission together with the grounds for that disagreement, whilst taking account of any points in the claimant's favour.

The role of the First-Tier Tribunal is not to decide whether the decision is fair, but to make the decision on the disputed matter(s) afresh by applying the law to the available facts. The submission of the claimant and the Secretary of State are clearly important in this process, but the Tribunal is entitled to prefer its own views. This contrasts markedly with appeals to the Upper Tribunal and beyond that to the courts, which must be on matters of law.


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 Post subject: Re: Clause 99
PostPosted: Sun 28 Sep, 2014 5:46 pm 
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Ohsocynical wrote:
DavidW:

Thank you so much for your input... We all appreciate it.


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 Post subject: Re: Clause 99
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ephemerid wrote:
Ohsocynical wrote:
DavidW:

Thank you so much for your input... We all appreciate it.



Seconded - it's good to know that having ploughed through all the guidance etc. I didn't get a lot wrong!

The difficulty people generally, who don't know and can't be expected to understand all this stuff, have is that they rely on what they are told by DWP - and given that many of the helpline staff don't know a lot either, I think many claimants will just give up.

Thanks, David.


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