Mandatory revision before appeal

[osdset]

So the motion was passed and it comes into force this April.

Lord Fraud made some interesting comments during his submission.

 

I will focus on those issues that I believe will be of most interest to noble Lords because they are both new and of significance. The first relates to mandatory reconsideration, provided for in Section 102 of the Welfare Reform Act 2012. Currently, a claimant can ask for a decision to be reconsidered by a decision-maker, and this process may result in a revised decision. In practice, however, many people do not do so and instead make an appeal from the outset. This is more costly for the taxpayer, is time-consuming, stressful for claimants and their families, and, for a significant number of appellants-some 40% of all appellants are successful-unnecessary. I say this because this success is on the back of new evidence presented at the tribunal.

 

Yep it's all the claimants fault for withholding evidence at the onset of their claim and then flourishing it like a rabbit from a top hat at the tribunal, utter cobblers.

 

I turn now to ESA. At the moment, if someone appeals a refusal of ESA, it can continue to be paid pending the appeal being heard; this is not changing. What is changing is that there can be no appeal until there has been a mandatory reconsideration. So there will be a gap in payment. In that period-and I repeat that applications will be dealt with quickly so that this is kept to a minimum

 

How quickly?

 

the claimant could claim jobseeker's allowance or universal credit. Alternative sources of funds are available. Of course, he or she may choose to wait for the outcome of the application and then, if necessary, appeal and be paid ESA at that point.

 

JC+ are happily going to accept claims from people that have been found not-fit-for-work by their GP are they?

 

The claimant could claim UC. Really? How does one go about claiming a benefit that has not even been implemented yet?

 

Alternative sources of funds are available, where Lord Fraud? What kind of funds Lord Fraud? Lord Fraud did not feel the need to enlighten the house on this one.

 

The government have hesitated, hedged, and mumbled about this change for months 'we remain undecided' was the stock reply, they bloody well knew what the intention was going to be, and that was to scupper the appeals process.

 

Full transcript of the motion to approve here: http://www.publications.parliament.uk/pa/ld201213/ldhansrd/text/130213-0003.htm

[speedfreek]

I give up on this subject now!

 

This change is to those on CONTRIBUTION based ESA After UC is introduced.

 

Income based ESA ceases to exist under UC!

 

The issue is not just payment!

 

The issue is as well;

 

what will be the UC Conditionality rules for those claiming what would have been Income based ESA under reconsideration.

 

If those on Conts can claim UC on the same terms then whilst it's a bit **** it's not that bad in theory. I know whine whine whine in practice yeah yeah yeah.

 

Actually payment is a misnomer and you're being dazzled by the headlights.

 

The issues is the arbitrary removal of entitlement to a contribution based benefit or the complete break of the link between paying contributions and receiving payment when needed for them.

 

Now these people claiming Conts ESA if they can not afford to live will have to claim something since there is no income ESA the bigger question I want to know which nobody knows nor is asking is Conditionality for those people under UC and the people already claiming UC for illness/disability.

 

Anybody know? Does anybody care?

[Guest]

i don't know....and yes I do care very much, how would find that out? without getting half answers and mutterings and maybe's, but a clear reply?

[Guest]

and one that I understand, as sometimes, even on here I don't quite get it always, and read through numerous times a fair bit. thanfully I can come back and re-read or I would just forget all together such is my short term memory.

[Nystagmite]

So, you're classed as fit to work until someone decides otherwise? Yet your GP (who is medically trained and I believe DWP aren't) states otherwise.

 

I thought the decision was looked at again before appeal, anyway.

[Invalidation]

So, you're classed as fit to work until someone decides otherwise? Yet your GP (who is medically trained and I believe DWP aren't) states otherwise.

 

I thought the decision was looked at again before appeal, anyway.

Surely the GMC arent going to let this pass by

[osdset]

So, you're classed as fit to work until someone decides otherwise? Yet your GP (who is medically trained and I believe DWP aren't) states otherwise.

 

I thought the decision was looked at again before appeal, anyway.

 

Now before anyone jumps on this, I'm referring to NOW, TODAY, not if and when UC is implemented. Anyone asking for a reconsideration loses benefit entitlement until either the DWP reverse their decision, or an appeal is lodged. Anyone appealing against a decision will continue to receive benefits, this changes in April, no one can lodge an automatic appeal, it goes to reconsideration automatically, therefore there is no ESA benefit entitlement until a decision is made (in the claimants favour), or an appeal lodged.

[Sparks_]

And the DWP can take as long as they want to decide? Seems another way to force people into poverty and off benefits!

[joeblogs]

I'm referring to NOW, TODAY, not if and when UC is implemented. Anyone asking for a reconsideration loses benefit entitlement until either the DWP reverse their decision, or an appeal is lodged..

 

I have a nephew under 16 with a life long illness, upon renewal his DLA was reduced from HRC to MRC. This child needs both day and night time care. The mother has asked for a reconsideration. Will she still be paid the MRC whilst they are deciding?

 

I find all these changes confusing and surely they must be illegal. How can people live on fresh air, and how can sick people sign for JSA as they will be commiting fraud by signing the agreement? Also, as already said by Nystagmite 'Yet your GP (who is medically trained and I believe DWP aren't) states otherwise'.

[sadone]

Sadly don't go looking for logic or legality with corrupt lying bunch of b*stards.

 

Everything they're doing is just to crush the sick and disabled and the poor whilst subsidizing the rich and big business.

[osdset]

Cameron & Co are working on ways of making the UK attractive to EU migrants, totally wrecking the welfare state might just put off the droves of Romanian 'roma' and Bulgarians heading our way soon, what a novel way to curb immigration!

 

Wreck the NHS and it's a full house.

 

Edit

lo and behold! In today's Daily Heil http://www.dailymail.co.uk/news/article-2280268/Iain-Duncan-Smith-Migrants-roots-claiming.html

Edited February 18, 2013 by osdset

[sadone]

 

Talking of which anyone seen this?

 

http://marksteelinfo.wordpress.com/2013/02/14/enough-arsing-about-lets-sort-out-the-world/#comments

[joeblogs]

Not to mention the cutbacks in the police force, but its ok to recruit police from abroad. The Winsor report makes astonishing reading. Theresa May and Tom Winsor are best buddies

[estellyn]

As decisions are already automatically reconsidered (though rarely changed) as part of the appeals process, there is no reason for this new policy except to make life horrendously difficult for those being incorrectly found fit for work.

 

It would have been so easy to have just changed the DWP process on the existing automatic reconsideration without removing payment. And I don't even know what they're trying to achieve, except to be able to say 'we've cut the number of people appealling'.

 

Yes the reconsideration process needed changing, but it could have been done without making people destitute in the process.

[Guest]

this has to be fought, somehow, it seriously cannot be allowed to happen, if it does I for one would end up homeless and gods know where, seems like they want the perfect society and any sick or disabled don't fit in unless they can be bullied into work, or a nuthouse....or a coffin..........cheers cam moron and calamity cleggy

[cleaver]

Now before anyone jumps on this, I'm referring to NOW, TODAY, not if and when UC is implemented. Anyone asking for a reconsideration loses benefit entitlement until either the DWP reverse their decision, or an appeal is lodged. Anyone appealing against a decision will continue to receive benefits, this changes in April, no one can lodge an automatic appeal, it goes to reconsideration automatically, therefore there is no ESA benefit entitlement until a decision is made (in the claimants favour), or an appeal lodged.

 

Then surely the answer is to not give the DWP any reason to 're-consider' the decision?

 

It seems that the DWP will get in touch with you to request any further evidence that you intended originally to take to the Tribunal instead. Give them that then they could take weeks to review it.

 

Tell the DWP to 'go fly their kite' as there is no evidence that you wish to submit, then they have to 're-consider' on the evidence they already have which should make it quicker?

[flumps1976]

A reconsideration can only really be considered if there is new information provided, otherwise it goes straight to the appeal stage.

[estellyn]

A reconsideration can only really be considered if there is new information provided, otherwise it goes straight to the appeal stage.

 

So maybe we should be looking into whether there is a minimum timescale for mandatory revision, rather than only worrying about what the maximum time might be?

[Guest]

well yes estellyn that makes sense

[cleaver]

A reconsideration can only really be considered if there is new information provided, otherwise it goes straight to the appeal stage.

 

 

Like I said, tell the DWP that there isn't any new evidence for them to look at as you wish to submit it to the Tribunal instead. The DWP could not then argue that they have spent time doing a re-consideration!

Personally I can't see what will happen after April will be any different to what is happening now. Currently even if you just submit an appeal without requesting a re-consideration, they still carry one out before pushing the case to the Tribunal Service.

[flumps1976]

Nail on the head Cleaver, that is exactly what happens atm

[osdset]

]Like I said' date=' tell the DWP that there isn't any new evidence for them to look at as you wish to submit it to the Tribunal instead. The DWP could not then argue that they have spent time doing a re-consideration! [/b']

Personally I can't see what will happen after April will be any different to what is happening now. Currently even if you just submit an appeal without requesting a re-consideration, they still carry one out before pushing the case to the Tribunal Service.

 

What is to stop the DWP from stating that under the new legislation they are duty bound to reconsider the existing evidence? They have been given no time limit for reconsideration's, and bearing in mind this legislation is designed to deter claimants from appealing I fully expect the DWP to take weeks if not months before the claim is referred to tribunal.

 

We all know that the DWP routinely rubber stamp ATOS assessments, so any reconsideration in a claimants favour would be unlikely, so one could argue that in those circumstances there is not much point doing a reconsideration as the decision is not going to change, therefore the only possible excuse to sit on a claim for an undetermined length of time would be to deter the claimant from appealing.

 

It has been stated that claimants can clain JSA in the interim, really? Perhaps Flumps can chime in with the correct rules, but so far as I am aware (unless a special case has been made) a claimant cannot claim ESA and JSA at the same time, therefore the ESA claim would have to cease and the appeal with it.

 

How could someone justifiably claim JSA stating that they are available for work when patently they are not? I fully expect JCP staff to refuse claims on the grounds of sickness/disability, or the claimant not being able to meet the job seeking requirement.

 

Rightsnet has some interesting comments on this subject http://www.rightsnet.org.uk/forums/viewthread/3888/

Edited February 20, 2013 by osdset

[antone]

 

It has been stated that claimants can clain JSA in the interim, really? Perhaps Flumps can chime in with the correct rules, but so far as I am aware (unless a special case has been made) a claimant cannot claim ESA and JSA at the same time, therefore the ESA claim would have to cease and the appeal with it.

 

 

While not disagreeing with most of your comments, it is possible to claim JSA while appealing an adverse ESA assessment decision. It's not really a case of claiming ESA and JSA at the same time (which, as you correctly note, is not permitted). In effect, it's JSA that's being claimed, and if the appeal is successful then the JSA paid is offset against any ESA arrears that would be due. A claim for JSA can't be taken as a de facto declaration that one is fit for work if the claim is made because of an ESA WCA failure.

 

This has always been possible, even back in the good old days of 2009 or so when I processed ESA. It just wouldn't be the course I'd normally advise, since it's possible to get the assessment rate of ESA on appeal.

[osdset]

While not disagreeing with most of your comments, it is possible to claim JSA while appealing an adverse ESA assessment decision. It's not really a case of claiming ESA and JSA at the same time (which, as you correctly note, is not permitted). In effect, it's JSA that's being claimed, and if the appeal is successful then the JSA paid is offset against any ESA arrears that would be due. A claim for JSA can't be taken as a de facto declaration that one is fit for work if the claim is made because of an ESA WCA failure.

 

This has always been possible, even back in the good old days of 2009 or so when I processed ESA. It just wouldn't be the course I'd normally advise, since it's possible to get the assessment rate of ESA on appeal.

 

 

OK thanks for the heads up!

[speedfreek]

Post 7 is what you'll be looking at in that rightsnet thread and is also the reason why I'm trying to expand the debate into Conditionality under UC!

 

We have sought further clarification from the DWP - asking if, at the point that an appeal is made, ESA will be backdated to when it ceased, and will other benefits claimed in the mean time (like JSA) be deducted from arrears - and they have responded by saying -

 

‘The position is that ESA will only be paid during the reconsideration period if an appeal is subsequently lodged.’ and ‘The policy intent is that ESA would be backdated to the point at which benefit ceased. Note that medical evidence continues to be required. And yes if arrears of ESA are subsequently paid any other benefit such as JSA would have to be deducted if paid for an overlapping period.’

 

NB - we did make it clear that we were asking about the position under the new mandatory reconsideration before appeal provisions.

 

Whilst this strict enforcement of the rules in existence is very nasty to those on Conts ESA call me paranoid (it's not to far from the truth) something as heated as this tends to be chucked in as a diversion to hide something far far nastier going on.