ESA Conversion Process Appeals.

Members may wish to consider adding the following submission to their appeal if they are disallowed ESA on migration from IS/IB/SDA. Please also note the proviso as detailed in red-

Sample submission on the “notification point” in ESA conversion appeals.

Appellants should ensure that in addition to these arguments, they also prepare any other arguable grounds of appeal — eg, collect medical evidence, etc, and draft submissions to show that even if this submission is not accepted, then the claimant has limited capability for work and qualifies for conversion.

Relevant facts concerning the conversion decision:-

1. I was in receipt of income support on grounds of incapacity/incapacity benefit/severe disablement allowance.

2. On INSERT DATE I was sent a copy of the letter attached.

3. On INSERT DATE following completion of an ESA50 form and assessment by a Health Care Professional the Secretary of State for Work and Pensions made the decision under appeal.

Representations concerning the power to make the conversion decision:-

The structure of the law

4. A “conversion decision”, such as the one at issue in this appeal is an oddity within the social security system in that, it brings to an end an award of Incapacity Benefit or Income Support payable on grounds of incapacity, not because the conditions of entitlement to that benefit are no longer met, but rather because the conditions of entitlement to another benefit (Employment and Support Allowance) are not satisfied.

5. Such an odd rule had to be specifically provided for by Parliament, which it did in Sec 29 and para 7 of Sch 4 to the Welfare Reform Act 2007:

5.1. Thus sec 29 gives effect to sch 4:
29. Schedule 4 (which makes provision with respect to transition in relation to this Part) has effect.

5.2. And para 7 of Sch 4 allows for the making of regulations converting one type of award into another:
7. (1) Regulations may—
(a) make provision for converting existing awards into awards of an employment and support allowance, and with respect to the terms of conversion;
(b) make provision for the termination of existing awards in prescribed circumstances.
(2) Regulations under sub-paragraph (1)(a) may, in particular;-

(a) make provision for conversion of an existing award—
(i) on application, in accordance with the regulations, by the person entitled to the award, or
(ii) without application;

(b) make provision about the conditions to be satisfied in relation to an application for conversion;

(c) make provision about the timing of conversion;

(d) provide for an existing award to have effect after conversion as an award of an employment and support allowance—
(i) of such a kind,
(ii) for such period,
(iii) of such an amount, and
(iv) subject to such conditions,
as the regulations may provide;

(e) make provision for determining in connection with conversion of an existing award whether a person has limited capability for work-related activity.

(3) Regulations under sub-paragraph (1)(a) may, in relation to existing awards which have been the subject of conversion under this paragraph, include provision about revision under section 9 of the Social Security Act 1998 (c. 14), or supersession under section 10 of that Act in respect of the period before conversion.

6. The Secretary of State has made the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 (SI 2010 No. 1907) under para 7 of sch 4.

7. Reg 4 of those regulations, so far as is relevant, provides as set out below- essentially para (1) allows the SSWP to send a notice to someone getting IB or IS on grounds of incapacity. Para (2) defines such a person as a “notified person” and para 3 sets out the required content of the notification:
4.—(1) Subject to paragraph (5), the Secretary of State may at any time issue a notice to any person who is entitled to an existing award.

(2) Any person to whom such a notice is issued is referred to in these Regulations as a notified person.

(8) 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;
(b )that, if those conditions are not satisfied, the existing award will not be converted and will terminate by virtue of these Regulations;
(c) of the requirements that must be met in order to satisfy those conditions; and
(d) of such other matters as the Secretary of State considers appropriate.

8. 2. The SSWP is empowered to make a "conversion decision" only in respect of a "notified person". This is clear from Reg 5(1):
Deciding whether an existing award qualifies for conversion
5.—(1) In relation to the existing award or awards to which a notified person (“P”) is entitled, the Secretary of State must, except where paragraph (8)(a) applies, make a conversion decision in accordance with these Regulations.
There is no other power for the SSWP to make a conversion decision.

The notice in the present case

9. The "notice" sent is attached to this submission.

10. In my submission, that notice does not, as required by Reg 4(2)(c) contain any details whatsoever as to the conditions that the claimant needed to meet in order to qualify to have his/her award converted. In other words the notice does not meet the requirement in that sub-paragraph because it does not “inform the notified person— [....] of the requirements that must be met in order to satisfy those conditions" (eg the conditions for conversion).

11. “The requirements that must be met in order to satisfy [the] conditions” of conversion are explained at regulation 7:

Qualifying for conversion

12. For the purposes of regulation 5(2)(a) (deciding whether an existing award qualifies for conversion), an existing award or awards to which a notified person is entitled qualify for conversion into an award of an employment and support allowance only if the person satisfies the basic conditions set out in section 1(3)(a) to (d) and (f) of the 2007 Act.

13. Sec 1(3)(a) to (d) and (f) of the 2007 Act referred to in Reg 7 are:
(3)The basic conditions are that the claimant—
(a)has limited capability for work,
(b)is at least 16 years old,
(c)has not reached pensionable age,
(d)is in Great Britain,
[….]
(f)is not entitled to a jobseeker's allowance (and is not a member of a couple who are entitled to a joint-claim jobseeker's allowance).

14. It is submitted that to satisfy the requirement in Reg 4(2)(c) the notice should have explained that the claimant would only qualify for conversion if they are adjudged to have limited capability for work, be over 16, in Great Britain etc. Indeed, the notice should also explain, in our submission, how a claimant can be determined to have a limited capability for work. - eg the points scoring system, the descriptors etc as set out in Part 5 and Schedule 2 of the Employment and Support Allowance Regulations 2008 (SI 2008 No. 794).

15. All the letter actually says which bears on the requirements that must be met in order to qualify for conversion is that "To decide if you are entitled to Employment and Support Allowance we need to assess and understand how your illness and disability affects the amount and type of work you could do". In particular, it is of note that this says nothing at all about the degree to which a persons illness or disability must limit the amount or type of work they could do. As such it does not bear at all on what the requirements for conversion actually are.

16. It is plain that the purpose of Reg 4(2)(c) is to ensure that a claimant knows about the nature of the test they are to be assessed with so that they can prepare for the examination. A further purpose is clearly to put in legislation a requirement that a claimant has been given a clear and accurate explanation of the process into which they are entering (the anxiety caused to long term ill claimants by the process having been widely anticipated.

17. The text of the notice, fails to inform a claimant that their IB, SDA or IS on grounds of disability will cease if they do not meet the conditions for conversion to ESA (in other words the notice does not meet the rule in Reg 4(2)(b) that it explain “if [..] conditions are not satisfied the existing award will not be converted and will be terminated”). What the notices actually say is:
“WHAT HAPPENS IF I AM NOT ENTITLED TO EMPLOYMENT AND SUPPORT ALLOWANCE? We will call you to discuss what your benefit options are [….] You may be entitled to Jobseekers Allowance, Income Support for other reasons or Pension Credit […] we will get in touch with you to discuss what your benefit options are at the appropriate time”.
A claimant reading that is not put on notice that if they fail to qualify for conversion their existing award will end.

17. The notice in this case therefore fails to comply with the requirements in Reg 4(2)(b) and Reg 4(2)(c).

What should be the consequence of the failure to give proper notice?

18. It is submitted that the claimant is not a "notified person" as they have not been sent a notice of the sort set out in Reg 4(3) and therefore do not come within that definition as set out in Reg 4(2). Therefore, it is submitted the SSWP had no power to make a conversion decision in this case and the tribunal is invited to find that the purported decision is of no effect.

19. It is only a claimant who has received a notice of the sort described in the regulations in respect of whom a conversion decision can be made. The ending of the existing award which this claimant was receiving has no legal basis. All such claimants, should still be receiving IB, IS or SDA.

20. There is an extensive caselaw on what should be the consequences where the law requires a notice requirement to be met on the part of the state before it can take a further step (such as the conversion decision in the present discussion). The question in such cases is whether the failure to give the correct notice then invalidates (sometimes referred to as “voids” or “renders null”) the subsequent step.

21. However, it is our view that most of that caselaw is not entirely pertinent to a situation such as the present:

21.1. Much of that caselaw is concerned with the requirement, in various rules, to give notice of rights of appeal when issuing a decision. The general rule in such cases, is that if a person has not been given such notice but nonetheless appeals then nothing should turn on the failure to give the notice (as the person has plainly not been prejudiced by the failure).

21.2. Some of the caselaw is also concerned with cases where rules are designed to ensure a person is informed of steps they are required to take in order to avoid certain consequences (in a social security context see the cases concerning the effect on the power to terminate benefit for failure to comply with an information request where a claimant has not received adequate notice of what they must do to be regarded as complying with the information request).

22. This case is different from both those sorts of cases in that the failure does not relate to giving notice of appeal or informing a claimant of some step they must take to avoid a certain consequence, but rather to explaining to a claimant the legal tests they are due to be subjected to. However, it does appear that the purpose of the requirement that a claimant be informed of the conditions that must be met to qualify for conversion and that entitlement will cease if those conditions are not met, is to ensure that a claimant is aware of what aspects of the way their health problems limit ability to work are relevant to the forthcoming test they are to be put through and also so they know that the result is crucial to continued entitlement. Given that, it is likely that this caselaw is of relevance here also.

23. In the House of Lords case, Regina v Soneji and another [2005] UKHL 49, all of the judges concluded that the proper approach to cases such as this was to determine what Parliament intended to be the consequence of a failure to comply with a procedural requirement.

24. The Court of Appeal in joined cases R (Jeyeanthan) v SSHD and SSHD v Ravichandran [1999] EWCA 3010 highlighted that there are some cases of failure to comply with a notice requirement where it is not necessary for a person, who seeks to challenge subsequent actions on the basis no notice was given, to show that they have been prejudiced by the failure to provide notice. The same case also suggests that where a person who has not been properly notified actually benefits from the decision which is subsequently taken then it will be rare that the failure to give the correct notice should deprive that person of the benefit which they have received.

25. In Jeyeanthan the Court go on to set out the questions which are likely to arise where a tribunal has to decide such cases. These 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?

26. Applying those rules to the present case:

26.1. In the context of the inadequacies of the notices sent in this case, regardless of whether strict or substantial compliance with the notice requirement is called for, the letters sent do not even achieve substantial compliance. As discussed above the letters come no where near meeting the rule that they inform a claimant their benefit will stop if they do not qualify for conversion or indeed what conditions a claimant must meet to qualify for conversion. It has been held that a “total failure to comply with a significant part of a requirement cannot in any circumstances be regarded as “substantial compliance”

26.2. Secondly, it is also clear that there is no rule allowing the requirement for notice in conversion cases to be waived.

26.3. Furthermore, the judgment emphasizes that when trying to determine the consequences of non-compliance with a notice requirement, the tribunal is seeking to determine, from an analysis of the legislative scheme as a whole, what the drafter of the rules intended to be the consequences of a failure to comply with the notice requirement. With regard to that, it is important to note that within social security law, it is not possible to take into account circumstances not obtaining at the time of the decision (in other words arguably attempts by the secretary of state to give proper notice after making a conversion decision are probably futile). It is also clear that the drafter only intended to allow a conversion decision to be made in respect of a notified person: the scheme could have been designed in a way such that the power to make a conversion decision arose more generally but it was not.

27. All those factors point to the consequences of non-compliance being to invalidate the subsequent decision: without the need to show the claimant has in fact been prejudiced by the failure.

28. Furthermore, whereas the requirement to show a claimant has been prejudiced can be seen to serve a function where the failure in notice relates to a failure to notify appeal rights or failure to inform the claimant they must perform a certain act to avoid specified consequences. Such a function of the requirement for notice is harder to discern with regard to conversion notices. That being the case it is difficult to see why it would be right to regard the failure to give the notice as anything other than fatal to the SSWP case.

29. It should be said that the consequences of such a decision are not unduly onerous for the SSWP: all he needs to do to provide himself with the power to make a conversion decision is to given proper notice to the claimant. He can then make the decision he proposed in this case: albeit from a later effective date. So all the SSWP is losing, if the tribunal shares my view, is his right to transfer a claimant onto a new benefit before he has notified a claimant.

30. It can also be noted that it cannot be objected that such an approach would mean that even positive conversion decisions (eg where the SSWP had converted someone’s award to ESA) would be unlawful. That is correct. However, no one suffers a loss on that basis: the SSWP will have underpaid some such claimants unless he has been making the transitional award and will have overpaid a very few others – such overpayments would not be recoverable. So there are no adverse consequences for other claimants of interpreting the rules in the way argued for here.

31. For all these reasons the Tribunal is invited to allow the appeal by holding that the decision of the SSWP is of no legal force or effect.

At the very least this submission should give appeal tribunals food for thought!

As an update to this subject, The DWP are now using a new conversion notice that seems to comply with the relevant regulations.

See this thread on rightsnet :

www.rightsnet.org.uk/forums/viewthread/3657/

See also, a copy of the new conversion notice, here :

New Conversion Notice

bro58

Update 21/05/13 :

Errant Conversion Notice Arguments fail at The Upper Tier.

Not good news, I'm afraid.

In all three cases heard at The UT recently, the findings were in favour of The Secretary of State.

UT Rulings CSE/269/12, CSE/443/12 and CSE/518/12

bro58