The question raised by AE v Sectary of State for Work and Pensions [2014] UKUT 005 (AAC) CE/2928/2013 is whether the tribunal on an appeal for the Support Group Component (Schedule 3) can look at Schedule 2 at the same sitting and change it’s decision in regards to the same without notifying the Client or its Solicitor’s of the “risk”.
In this case AE was awarded ESA WRG under regulation 29(2)(b) when she was ported from Incapacity benefit. Upon appealing for the support group component, the tribunal looked at her entitlement under schedule 2 again and awarded her 21 points but found she did not satisfy regulation 29(2)(b) or have limited capability for work related activity.
The upper tribunal found that the whole of the conversion decision and not just the part that related to work capability was on appeal. They stated it was a single decision that deals with both capability for work and capability for work-related activity and they do not form 2 separate decisions.
They stated that due to the close relationship between schedule 2 and 3, the tribunal had to look at both when considering the appeal.
The question would therefore remain should they have warned of the risk as required under Article 6 of European Convention on Human Rights and Fundamental Freedoms.
The Tribunal found that warning of the same may have been appropriate or even necessary in some cases however in this instance as the claimant was represented by solicitors they should have been aware of the risk and so it was not necessary as the solicitor should have been aware and advised of the risk.
Points to note
Two questions arise:
1) Should the process be universal for represented or unrepresented clients and can it be seen as a flaw or irregularity by making the distinction between represented and unrepresented claimants.
2) If the original decision appealed was one after a change of circumstances where fulfilment of schedule 3 was the sole decision appealed, can the tribunal still re-look at schedule 2 and find against the appellant and take away WRAG as well?
The last point I would make is that, as Legal Aid has been cut on benefits and as most ESA appeals are now being made by advice agencies, often not trained to the same level or expertise as each other or some solicitors, are they leaving themselves open to negligence claims by not advising of the risk of schedule 2 being re-looked at if it is then changed against the client? This leading to the argument the risk should be made clear in ALL cases regardless of representations being made.
We understand the Solicitor with conduct of this case is looking into the possibility of appealing this further. We also presume DLA and PIP appeals would also fall in the same risk bracket, namely if you appeal one component the other may also be affected. So would need to keep an eye on this when appealing.
Thank you for MTG Solicitors for making this available to us. (disclosure: I am working at this firm’s Hayes office at the time of this post)
