This factsheet was prepared as supporting material for Disability Alliance's Tribunal Support Unit seminar employment & support allowance – a year to go. The Tribunal Support Unit is sponsored by the Big Lottery Fund.
We are told that most employment and support allowance (ESA) decisions will have a right of appeal to an independent tribunal. ESA claims will involve the interpretation of new law. Testing the government’s interpretation of this law through the appeals process may be an important part of your advice service.
It will be possible to appeal against nearly all ESA decisions. From experience of other benefits, it is possible to predict which types of decisions are most likely to result in an appeal.
It is likely that most ESA appeals will result from decisions about:
• the medical assessments;
• the work-seeking conditions;
• the means test.
New legislation will need to be read carefully to reveal its true meaning.
Existing case law will help in some appeals. Where the wording and context of existing legislation is identical to the new ESA legislation, current case law can be used. Where the wording or context differs, appeals will test how far existing case law can be relied upon.
New case law will help interpret the new legislation, but the first cases are unlikely to be decided at the Commissioners until after the benefit's introduction and it will be even longer before they reach the higher courts.
Before requesting evidence, look closely at the new test. The evidence should address the test as closely as possible.
Evidence used for earlier benefits can still be useful – e.g. the clinical findings of a medical report obtained for the personal capability assessment may still be relevant. The findings of an older report can be used to query those of a newer report if they differ and any inconsistencies can be pointed out to the tribunal.
There are three medical assessments for ESA. The tests are used to establish:
Limited capability for work: This test is closely related to the personal capabilities assessment. It is used to decide who will be entitled to ESA. Failure to satisfy the test will mean ESA is refused.
Some of the wording of this test is identical to, or very closely reflects, the wording of the incapacity benefit personal capability assessment so much case law will still be relevant. Other parts of the test are new.
The government has stated that it intends that some of the case law principles established under the incapacity benefit personal capability assessment will apply to the new test; including that about being able to carry out tasks when called upon to do so and with "reasonable regularity". It is not clear whether these principles will be specified in legislation. If they are not, whether this case law applies will depend upon whether the wording of the new legislation is sufficiently close to that of the current incapacity benefit personal capability assessment.
Limited capability for work-related activity: This will determine who enters the support group. People who satisfy the test will not have to undertake any work-related activity as a condition of receiving benefit. They will also receive a higher rate of ESA.
Most of the terms are new, so existing case law will probably not be helpful.
Work-focused health-related assessment: Similar tests have been piloted under Pathways to Work. There are unlikely to be appeals directly against the assessment itself, but benefit refusals and sanctions arising from its findings are likely to result in appeals.
The assessment will not need to answer specific questions, but will gather information to help draft the agreement about what the claimant will do for work.
Sanctions and disallowances will result from the new requirements to undertake work-related activities.
Appeals are likely to centre upon the claimant’s “just cause” for refusing to carry out such activities. Case law about jobseeker’s allowance sanctions may sometimes be useful.
The ESA means test is based upon the income support means test, though there are some differences. Appeals are likely to continue to deal with issues like:
• cohabitation;
• valuation of income and capital;
• overpayments and disclosure.
The wording of legislation is identical to, or closely mirrors, existing income support legislation. Existing case law will be very relevant to these appeals.
The existing legislation governing decisions will apply to ESA. The present regime of revision supersession and appeal will continue, with minor amendments to reflect the ESA rules.
Appeals about the medical assessments for limited capability for work and limited capability for work-related activity are likely to be heard by a two-person tribunal made up of a lawyer and a doctor.
Appeals against benefit refusals and sanctions where the claimant fails to carry out work-related activity are likely to be decided by a one-person tribunal. Although the claimant’s grounds for appeal will often rely heavily on the effects of their medical condition or defects in the work-focused health-related medical assessment, it is likely that the appeal will be heard by a lawyer sitting alone.
Tribunals will be deciding appeals against decisions made under new legislation and often without guidance from case law. In these circumstances, the chances of the tribunal making a legal error will increase.
Further appeal will also establish case law to help interpret the new legislation.
This factsheet is based on the information available at the time it was written. As we find out more it will be updated. You should regularly check our website at www.disabilityalliance.org for these updates and any other information we post.
You can also obtain copies of our factsheets by contacting Disability Alliance on 020 7247 8776 (voice and minicom) or by fax on 020 7247 8765.
For more detailed information Disability Alliance will be producing an employment and support allowance guide later in the year. This is now available to order.
May 2008
