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Ministerial statements and the law
- carruthers
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11 years 5 months ago - 11 years 5 months ago #94838 by carruthers
Ministerial statements and the law was created by carruthers
I was looking at the ME Association website where it quotes David Freud's statement to the House of Lords
This list - "repeatedly, reliably, safely" plus "in a timely manner" (where did that come in?) has been repeated here and elsewhere.
But is it based on this statement by Lord Freud, or is there in the legislation?
If it based solely on the statement by a minister in Parliament, does that have any actual legal standing?
I wondered about this with regard to Chris Grayling's statement to the Commons about recording as well. It may be an announcement of government policy, but (as we have seen recently) announcements about policy are hardly set in stone.
How far would quoting Lord Freud get you in front of a tribunal? And, with regard to the "repeatedly" etc phrase is it anywhere in the primary legislation or subsequently in law or case law?
.It must be possible for all the descriptors to be completed reliably, repeatedly and safely, otherwise the individual is considered unable to complete the activity
This list - "repeatedly, reliably, safely" plus "in a timely manner" (where did that come in?) has been repeated here and elsewhere.
But is it based on this statement by Lord Freud, or is there in the legislation?
If it based solely on the statement by a minister in Parliament, does that have any actual legal standing?
I wondered about this with regard to Chris Grayling's statement to the Commons about recording as well. It may be an announcement of government policy, but (as we have seen recently) announcements about policy are hardly set in stone.
How far would quoting Lord Freud get you in front of a tribunal? And, with regard to the "repeatedly" etc phrase is it anywhere in the primary legislation or subsequently in law or case law?
Last edit: 11 years 5 months ago by Gordon.
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- Gordon
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11 years 5 months ago - 11 years 5 months ago #94841 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Re:Ministerial statements and the law
carruthers
There is the law or regulation.
There are Judges who interpret the law and where applicable set precedent.
There are Ministers who set policy.
With specific reference to the use of repeatedly, reliably, safely, and in a timely manner. This is the result of Upper Tribunal judges interpreting the law and setting precedant through case law.
With regard to the recording of WCA's. The Minister has set policy that has resulted in the purchasing of recording equipment for use by ATOS and has stated that wherever possible, claimant's WCAs will be recorded.
In neither of these examples has there been a change to the law by which ESA is defined.
So the Judge who sets precedant cannot, purely as an example, remove the requirement for a wheelchair to be considered as part of the ESA mobiliing test, this is because the requirement is defined in the legislation.
Claimants still do not have a right to require the recording of their WCAs, because this was never part of the legislation, and the legislation has not been changed to provide for this.
Gordon
There is the law or regulation.
There are Judges who interpret the law and where applicable set precedent.
There are Ministers who set policy.
With specific reference to the use of repeatedly, reliably, safely, and in a timely manner. This is the result of Upper Tribunal judges interpreting the law and setting precedant through case law.
With regard to the recording of WCA's. The Minister has set policy that has resulted in the purchasing of recording equipment for use by ATOS and has stated that wherever possible, claimant's WCAs will be recorded.
In neither of these examples has there been a change to the law by which ESA is defined.
So the Judge who sets precedant cannot, purely as an example, remove the requirement for a wheelchair to be considered as part of the ESA mobiliing test, this is because the requirement is defined in the legislation.
Claimants still do not have a right to require the recording of their WCAs, because this was never part of the legislation, and the legislation has not been changed to provide for this.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Last edit: 11 years 5 months ago by Gordon.
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- bro58
11 years 5 months ago - 11 years 5 months ago #94842 by bro58
Replied by bro58 on topic Re:Ministerial statements and the law
Besides being UT Case Law, "Reasonable Regularity" is mentioned here :
www.dwp.gov.uk/docs/dmgch42.pdf
In The DM Guide at 42175, Quote :
"42175
The test of whether a claimant cannot perform an activity is not whether or not they are physically incapable of performing it. Matters such as pain, discomfort and repeatability are taken into account. A claimant is not capable of carrying out an activity if they can only do so with severe pain or, if having done it once, they are unable to repeat it for hours or days. The extent of a claimant’s ability to repeat the activity in a single stretch and of the intervals at which the claimant would be able to repeat the performance should be identified. A decision can then be made on whether the claimant can perform the relevant descriptor with reasonable regularity."
bro58
www.dwp.gov.uk/docs/dmgch42.pdf
In The DM Guide at 42175, Quote :
"42175
The test of whether a claimant cannot perform an activity is not whether or not they are physically incapable of performing it. Matters such as pain, discomfort and repeatability are taken into account. A claimant is not capable of carrying out an activity if they can only do so with severe pain or, if having done it once, they are unable to repeat it for hours or days. The extent of a claimant’s ability to repeat the activity in a single stretch and of the intervals at which the claimant would be able to repeat the performance should be identified. A decision can then be made on whether the claimant can perform the relevant descriptor with reasonable regularity."
bro58
Last edit: 11 years 5 months ago by bro58.
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- francis
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11 years 5 months ago #94866 by francis
Replied by francis on topic Re:Ministerial statements and the law
Hi, could this be of help to you.
Pepper v. Hart [1993] AC 593
'When primary legislation is ambiguous, the court MAY, refer to statements' in the House of Commons or the House of Lords'...
Pepper v. Hart [1993] AC 593
'When primary legislation is ambiguous, the court MAY, refer to statements' in the House of Commons or the House of Lords'...
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- Gordon
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11 years 5 months ago #94882 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Re:Ministerial statements and the law
francis wrote:
Specifically with regard to the recording of ESA assessments, there is no legal requirement for ATOS to record an assessment when requested by a claimant.
On this basis, any comments by the Minister are irrelevant, as they cannot create law by their words, where none currently exists.
Gordon
I feel obliged to comment on this to avoid members being confused.Hi, could this be of help to you.
Pepper v. Hart [1993] AC 593
'When primary legislation is ambiguous, the court MAY, refer to statements' in the House of Commons or the House of Lords'...
Specifically with regard to the recording of ESA assessments, there is no legal requirement for ATOS to record an assessment when requested by a claimant.
On this basis, any comments by the Minister are irrelevant, as they cannot create law by their words, where none currently exists.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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