ESA decisions and appeals

 

Simon Osborne outlines the rules regarding decision-making and challenges in employment and support allowance (ESA).

In general, there are relatively few special rules regarding decision making and appeals for ESA, relative to other social security benefits. ESA has been slotted into the main rules to sit alongside other benefits, so that the basic pattern of decision by the Secretary of State and change on revision, supersession or appeal applies to ESA in the familiar way.

Regarding initial decisions on a claim, as for other benefits, formally speaking they are made by the Secretary of State for Work and Pensions (i.e., DWP decision-makers) as ESA is a 'relevant benefit' for such purposes.1 s8(3)(ba) Social Security Act 1998 ('SSA 1998'). The relevant amendment is in para 17 Sch 3 Welfare Reform Act 2007

Subsequently - because ESA is a relevant benefit - ESA decisions may be altered on revision, supersession or appeal.2 ss9, 10 and 12 SSA 1998The time limits (i.e. one month for 'any grounds' revisions and for appeals, with possibility of extension in some circumstances) apply to ESA decisions in the usual way. The basic appeal right against a 'decision made by the Secretary of State' (i.e., a decision of a decision-maker) applies to ESA decisions in the same way as it does to other benefit decisions; the only exclusions are regarding claims and payments decisions on which a partner should make a claim for ESA, treating a claim for maternity allowance as a claim for ESA and the manner and time of payment of ESA.3 s12 SSA 1998; reg 26 and Sch 2 Social Security and Child Support (Decisions and Appeals) Regulations 1999 ('D&A Regs'). The relevant amendment to Sch 2 ('decisions against which no appeal lies') is in reg 42 The Employment and Support Allowance (Consequential Provisions) (No. 2) Regulations 2008, SI 2008 No. 1554So, ESA decisions can in essence be revised, superseded or appealed in the usual way.

Apart from the fact that they are made by DWP decision-makers, what is an ESA decision? The question is important as it is only 'decisions' that are subject to revision, supersession and appeal. In particular, are there any important ESA matters that are not the subject of a decision, for example because they are actually a 'determination'? The basic answer is yes, a few, but only those of a sort that have not been the subject of a decision in related benefits, and in some cases appeal rights may follow anyway.

Just as in incapacity benefits, the matter of if and when a claimant who is subject to conditionality (see Bulletin 205, p. 4) is actually required to attend a work-focused interview is not the subject of a decision, neither is it in ESA.4 Note though that, reg 59(2) of the Employment and Support Allowance Regulations Regulations 2008, SI 2008 No. 794 ('the ESA Regs') does talk of a 'decision' to defer a work-focused interview; reg 60 however talks of a 'determination' not to apply the requirement to attend such an interview.The result is that ESA claimants that are subject to conditionality (i.e., those large majority of claimants who are in the work-related activity group) cannot appeal against any 'determination' that the interview is not to be waived or deferred.

The issue of whether or not someone has failed to take part in an interview without 'good cause' is also initially the subject of a 'determination', but the consequent benefit reduction is the subject of a decision on entitlement, including on supersession 5 Reg 63 ESA Regs; reg 6(2)(p) D&A Regs. The relevant amendment is in reg 32 of SI 2008 No. 1554and the appeal rights that attach to that allow the taking part and good cause issues to be challenged. (The DWP has confirmed to CPAG that the appeal can cover good cause, even where the claimant did not claim good cause within five working days of the interview.6 Email from DWP, to Simon Osborne, CPAG, 21 January 2008The decision can also be the subject of a revision application.

Also, as in incapacity for work for incapacity benefits, the official view of whether someone satisfies the basic requirement of being too ill to work (i.e., of having 'limited capability for work') is initially the subject of a determination - by the decision-maker, not by a doctor.7 Reg 19 ESA Regs; Reg 11(aa) D&A Regs. The relevant amendment is in reg 37 of SI 2008 No. 1554However, that too is eventually embodied in a decision on ESA (or national insurance credits) entitlement to which appeal (and revision) rights attach. Also, that determination is conclusive for the purpose of other benefit decisions.8 Reg 10 D&A Regs. The relevant amendment is in reg 36 of SI 2008 No. 1544

Apart from the general applicability of the main rules (including on official error, changes of circumstances and failure to take part in an interview under the conditionality rules), the following details regarding ESA might be of note.

In the rules about any time revisions, those regarding incapacity benefit decisions and incapacity determinations where there has been a mistake or ignorance of a fact as a result of which the claimant benefited now apply similarly to ESA decisions and limited capability for work determinations. Income-related ESA may be increased on revision following award of a qualifying benefit (including to a non-dependant) in the way that income support can.9 Reg 3 (5), (7) and (7ZA) D&A Regs. The relevant amendment is in reg 31 of SI 2008 No. 1544

In supersessions, a ground regarding ESA is where since the original decision the Secretary of State has received medical evidence from a DWP health care professional (usually a doctor) following a medical to test limited capability for work or limited capability for work-related activity.10 Reg 6(2)(r) D&A Regs. The relevant amendment is in reg 32 of SI 2008 No. 1544This will, among other things, provide the basic ground for altering entitlement following failure of the work capability assessment.

In connection with both revisions and supersessions, someone whose entitlement to ESA is conditional on them having or being treated as having limited capability for work (that would appear to be all ESA claimants) is added to the list of people who must supply information or evidence.11 Reg 17(2)(f) D&A Regs. The relevant amendment is in reg 32 of SI 2008 No. 1544

ESA appeals are in essence like other social security appeals. Given that ESA was introduced on 27 October, and the new First-tier Tribunal and Upper Tribunal rules were introduced on 3 November (see, respectively, Bulletin 206, p. 8, and below), the vast majority if not all ESA appeals are likely to be under the new rules. ESA appeals concerning limited capability for work will be considered by a legally qualified 'judge' and by a medically qualified member, similar to incapacity for work appeals under the old tribunals.12 Senior President of Tribunals Practice Statement, Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 3 November 2008

As with all appeals to tribunals old and new, an appeal against a decision enables the whole of the decision to be reconsidered, even parts of it with which the appellant is not specifically concerned. The legal power to do this is at s12(8)(a) Social Security Act 1998, which provides that, in deciding an appeal, a tribunal 'need not consider any issue that is not raised by the appeal' - i.e., so that although they 'need not', they are not actually barred from doing so. This must give rise to a warning regarding ESA decisions, which may be about more than one issue and indeed about ESA entitlement in general. The DWP have confirmed to CPAG its view that ESA appeals are against 'outcome decisions', so that, 'any determination that is embodied in or necessary to that decision' is open to the tribunal.13 Email from DWP, to Simon Osborne, CPAG, 13 November 2008Perhaps the most common example from other benefits concerns disability living allowance, where an appeal against the decision regarding one component allows, in theory at least, reconsideration of the award on the other component even if the claimant does not want to disturb that, because both are included as part of the same decision. Possible results include reduction or even total removal of entitlement.

In ESA, it is at least possible that determinations on matters like, for example, membership of the support group (i.e., on 'limited capability for work-related activity') and on limited capability for work (i.e., on the revised form of the personal capability assessment that now forms the main part of the work capability assessment for ESA) will be embodied in the same decision. Therefore an appeal against the decision to get at one determination could in theory expose the other, or even entitlement overall, to reconsideration as well. Of course, such instances might be uncommon or even rare, tribunals can be requested not to reconsider anything else, and case law on similar occurrences with other benefits has provided some safeguard in the form of the tribunal's duty to exercise proper discretion, give the claimant adequate warning and chance to make arguments, etc.14 See, for example, R(IB) 2/04 and, more recently, CDLA/2084/2007 (Bulletin 204, p. 15)But it remains that claimants should be warned that ESA appeals could lead to parts of a decision they are content with being revisited, possibly to their disadvantage.

Whilst appealing, claimants can if they so wish stay on ESA, though at a reduced rate. Claimants found not to have limited capability for work who have appealed against that decision can get reduced-rate ESA whilst the appeal is pending, provided that they continue to submit medical certificates - note that is not restricted to income-related ESA.15 Reg 30(3) ESA RegsIt is understood that the appeal letter can be treated as a new claim for ESA, and the reduced-rate is achieved by applying only the 'assessment phase' rate of ESA (i.e., without additional components) while the appeal is pending.16 Reg 6 ESA RegsAn alternative (as in incapacity for work appeals) is for the claimant to claim jobseeker's allowance while appealing. The DWP has confirmed to CPAG the official intent that where that happens, and the claimant subsequently wins their appeal so re-establishing entitlement to ESA, they will be able to receive arrears of ESA less any JSA paid.17 Email from DWP to Simon Osborne, CPAG, 15 October 2008

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