IB/IS to ESA migration- “unnoticed”?

1. IB/IS to ESA migration- “unnoticed”? Martin Williams March 2012

2. Initial point to note… • Technical arguments about notices should not be relied upon at the expense of proper preparation of the ESA appeal on normal grounds (ie 15 points LCW etc).

3. Nature of an ESA conversion decision • A “conversion decision” ends entitlement to IS/IB/SDA. • It does this not on the basis that the conditions of entitlement for IS/IB/SDA are no longer met (eg that the claimant does not have incapacity for work). • Rather it does it on the basis that the claimant falls to be tested to see whether they meet the conditions for ESA- ie limited capability for work.

4. Requirement for notice before decision • Para 7(b) of Sch 4 to the Welfare Reform Act 2007 allows for regulations to: • “(b)make provision for the termination of existing awards in prescribed circumstances.” • No power to terminate an existing award outside of the prescribed circumstances in the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 (SI 2010 No. 1907) • Regulation 4 provides for notices to be sent to people on IS/IB/SDA: such people are called “notified person[s]” • Regulation 5 requires a conversion decision to be made in respect of a “notifed person”.

5. What the notice must contain: (1) Regulation 4(3)(a) and (c): • (3) The notice must inform the notified person— • (a)that an existing award is to be converted into an award of an employment and support allowance if certain conditions are satisfied; • [….] • (c)of the requirements that must be met in order to satisfy those conditions; and • QUESTION: what are the requirements to be met? • ANSWER: Effectively LCW…. Reg 7 and sec 1(3)(a) of the Act.

6. What the notice must contain: (2) • Reg 4(3)(b): • (3) The notice must inform the notified person— • [….] • (b)that, if those conditions are not satisfied, the existing award will not be converted and will terminate by virtue of these Regulations;

7. What does the notice say? Have a look at the notice….

8. Some questions on the notice: • Does it say: • a claimant must have limited capability for work? • what limited capability for work is? • What does it say about LCW? • Which sounds like you need to be sicker for it to apply to you: • “limited capability for work”; • or “incapacity for work”? • Does the letter explain that existing benefit will stop if fail conversion?

9. Consequences of inadequate notice: 1. Claimant is not a “notified person” as no notice of required form given. 2. Therefore no conversion decision can be made. 3. If the Decision Maker purports to make a conversion decision arguably that is invalid. 4. Winning on the above basis restores the existing award.

10. Need to show prejudice? • Cases where notice invalid: • Many situations where unless claimant has suffered prejudice due to inadequate notice this will not effect outcome. • eg- inadequate notices of HB overpayment decisions (Haringey LBC v Awaritefe [1999] 32 HLR 517) • Other cases insist on strict compliance with the notice requirement- eg much of the caselaw on suspensions/termination (although issue left open in CH/2995/2006). • Cases outside social security…. (next slide Martin…)

11. R v Soneji and Anr [2005] UKHL 49. • Refers to judgments from other countries and holds that effectively the test is: • “to ask whether it was a purpose of the legislation that an act done […] should be invalid. [….] In determining the question of purpose regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’” • “the more serious the public inconvenience and injustice likely to be caused by invalidating the resulting administrative action, including the frustration of the purposes of the legislation, public expense and hardship to third parties, the less likely it is that a court will conclude that legislative intent is best implemented by a declaration of invalidity”

12. R (Jeyeanthan) v SSHD and SSHD v Ravichandran [1999] EWCA 3010 • Questions can be expressed as follows: • is strict compliance with the requirement what is needed or will it be enough if there has been substantial compliance? If so, has there been substantial compliance? • Is the requirement for compliance with a notice requirement capable of being waived? If so, has it been waived? • If the requirement for compliance either cannot or has not been waived, what are the consequences of non-compliance?

13. In these cases: The language is strong that notice is needed. Notice is not even vaguely compliant. No possibility for waiver seems to exist The purpose of notice seems to be so people know what is happening and understand the standard against which they are to be measured. Finding invalidity will not present the SSWP from giving proper notice and making a new decision to the same effect but from a later date. The overall purpose of migration would not be frustrated. There would be no hardship to a third party It will be expensive It is difficult to discern why prejudice would need to be shown or what it would consist of.