Greater Manchester Welfare Rights Advisers Group Minutes of GMWRAG meeting held in Stockport on 18th January 2013

PRESENT FOR MORNING SESSION :

Rob Jenkins Stockport Welfare RightsMike Hughes Salford Welfare RightsKurt Kleinschmidt Tameside Welfare RightsRuth Cheesbrough Tameside MBCKaren Watson The Royal British LegionJoanne Parry-Statter The Royal British LegionLynne Cardwell Salford Carers CentreAndrea Libman Salford Carers CentreTerry Patterson Manchester City CouncilRoger Thompson Tameside MBCRagini Hevingham Tameside MBCSteve Ogden Tameside MBCHelen Rogers Stockport Welfare RightsJean Betteridge Access 2 AdviceGareth Morgan FerretJulian Spencer Rochdale AdvicePatrick Hill Manchester MIND

APOLOGIES :

Tracy Fallon-Topham New Charter Housing TrustJane Hobson Trafford Welfare RightsDon Williams Bury SSDVic Godden Oldham Welfare RightsAmira Taha Salford Welfare Rights

Minutes of the last meeting/matters arising

No progress as yet in investigating charitable status

Pay and Employment Rights Advice held a poorly attended closure meeting. The website and advice line will close from 27th February 2013.

Oldham WR have agreed to host a future GMWRAG meeting

Warnings were issued of a rogue GMWRAG photographer in attendance.

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Access 2 Advice

Publicity for event on 9th February – details elsewhere on the GMWRAG website.Looking at advice work in the future and the immediate impact of April cuts. Plenty of workshops and a large number of people expected to attend, with wide range of backgrounds.

Low Commission – on the future of advice and legal support. Visit the website to find out how you can help.

http://www.lowcommission.org.uk/

Universal Credit and Advice Implications

Gareth Morgan went through his presentation which has already been added to the website. He stressed the importance of the role of an adviser in the future to explain implications of UC introduction, and change results. The move to UC is a ‘philosophical’ effort to produce a system of work-based support. Interesting issues included :-

the ‘lobster pot’ impact, as it will not be possible to move off UC once involved in it (unless you move to Northern Ireland in the first year)

will have to prove ID through separate agencies such as the Post Office (checking online profiles)

disregarded income varies according to whether you have housing costs or not

no support with mortgage costs if have any earnings other mortgage support limited to two years for jobseekers, and would be

recovered by a charge on property from disabled/older people shared ownership schemes will come out very badly capital rules far more generous on Tax Credits childcare restrictions could mean people would not be better off doing more

work better-off calculations will have to consider long-term impact, not just current

advice. Big technology implications, as will not be enough advisers to meet demand.

a warning that five years of confusion lie ahead, and note the advertisement at the end of the presentation

There was a spontaneous round of applause, and there the morning ended, before any opportunity to go ‘around the regions’ or to get Stockport mobilising (see PM).

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PRESENT FOR AFTERNOON SESSION :

Rob Jenkins Stockport Welfare RightsMike Hughes Salford Welfare RightsTerry Patterson Manchester City CouncilHelen Rogers Stockport Welfare RightsGareth Morgan FerretPatrick Hill Manchester MINDAnne Faulkner Stockport Welfare RightsHarvey Budworth Stockport Welfare Rights

Stockport’s Council Tax Support Scheme with Alison Blount, Head of Revenues and Benefits

Stockport’s approach is to achieve some of the savings necessary by a range of measures. CTS will be restricted to Band A/B, so people in higher bands will only receive support up to a maximum based on the lower band figures. Second Adult Rebate abolished, and a capital cut-off of £8000. There will be increased non-dep deductions, and unoccupied properties will have reduced discounts. It is to be hoped these measures will prevent need to apply universal charging for people on means-tested benefits. Scheme may need to adapt as it continues.

See some further clarification on the issue of SMI exemptions :There was no mention of SMI cases in the Stockport local scheme , in other words they are not exempted from the restrictions imposed by the CTS scheme. However that does not impact in any way on the existing SMI relief which means that people who are classed as SMI are not counted when the number of adults in the household is worked out. This will remain in just the same way although an SMI adult would be counted when for Stockport’s CTS purposes when establishing if a band A or band B restriction were appropriate ( depending on the number of bedrooms required)

Stockport and Social Fund Localisation with Jennie Neil, Social Fund Project Manager

At the time of the meeting there were 10 weeks to go before implementation of the new scheme. A challenging time is to be expected, and it is clear that there will be significant differences from what has gone before.

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Let’s Get Stockport Mobilising

This was intended to be an opportunity to share experience of what the issues are with the current ESA activity of mobilising, arguments to be made, and how tribunals are dealing with them. But it was late in the day by this point, with the threat of more snow. Here is a selection of snippets :-

Let’s Get Stockport Mobilising - A Brief Review of ESA Activity 1

(1)Activity (2) Descriptors (3)Point

s

1. Mobilising unaided by another person with or without a walking

stick, manual wheelchair or other aid if such aid can reasonably be

used.

1 (a

)

Cannot either:

(i) mobilise more than 50 metres on level ground without

stopping in order to avoid significant discomfort or

exhaustion;

or

(ii) repeatedly mobilise 50 metres within a reasonable

timescale because of significant discomfort or exhaustion.

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What is the walking ability like? Where does the bread and milk come from?Up and down the land, people are said to agree at their WCAs that they make daily trips to the local shop to buy bread and milk. “a tribunal faced with evidence of a claimant’s ability or lack thereof to walk to identified local shops known to the tribunal can draw appropriate inferences from the representative walking ability of the claimant having regard to what she regularly accomplished (LD v SSWP[2009] UKUT 208 AAC”ATOS nurses have been sitting in on appeals in Manchester, to find out why so many assessments are overturned on appeal. They have now discovered the need to name the shops specifically, for the avoidance of doubt.

Can everyone use a wheelchair?“Standard self propel wheelchairs will be provided for those people who are able to demonstrate their ability to independently self propel a steel framed wheelchair, and doing so is not detrimental to their health” (Stockport Wheelchair Service Eligibility Criteria)

CE/1217/2011“If the claimant does not use a particular type of aid or appliance and one has not been prescribed or recommended, then the decision maker or First-tier Tribunal is

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entitled to take the view that the claimant should be assessed as if using one, but only if one is normally used by people in that situation acting reasonably in all the circumstances and it would be reasonable for the claimant to do the same.”Memo DMG24/12AID OR APPLIANCE NOT PRESCRIBED OR ADVISED9 The DM must consider all the circumstances in order to determine whether itwould be reasonable to assess the claimant as using an aid or appliance thathas not been prescribed or that they have not been advised to use.10 Factors include whether1. the claimant possesses the aid or appliance2. the claimant was given specific medical advice about managing their condition, and it is reasonable for them to continue following that advice3. the claimant would be advised to use an aid or appliance if they raised it with the appropriate authority such as a GP or occupational therapist (advice may only be given on request)4. it is medically reasonable for them to use an aid or appliance5. the health condition or disability is likely to be of short duration6. an aid or appliance is widely available7. an aid or appliance is affordable in the claimant’s circumstances (people are not routinely required to buy equipment where it can be prescribed.)8. the claimant is able to use and store the aid or appliance9. the claimant is unable to use an aid or appliance due to their physical or mental health condition, for example they are unable to use a walking stick or manual wheelchair due to a cardiac, respiratory, upper body or mental health condition.

CSE/151/2012“Her representative elaborates that general submission in considerable detail on document 82 as follows:

“We consider the tribunal have erred in law by not finding facts in relation to the following pertinent questions –

1. Whether it has been suggested to the appellant by medical personnel that it would have been suitable/reasonable for her to use a wheelchair given her condition/rehabilitation needs at that point in time (i.e. whether it was medically suitable for her to use a wheelchair with respect to her ongoing recovery). The use of crutches may have been a necessary part of the appellant’s rehabilitation programme and undermined by wheelchair use. No questions appear to have been asked of the appellant about whether it had been suggested she could use a wheelchair instead of crutches by medical personnel and whether this was medically suitable.

2. Whether the appellant would, in reality, have access to a wheelchair given the nature of her condition and availability of wheelchairs by local providers. That is, would a wheelchair, in reality, be available to her?

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3. The appellant lives in an upstairs tenement flat. No questions were asked as to whether a wheelchair would be practical/suitable for her from the point of view of her living arrangements.”

The Secretary of State’s submission writer in paragraph 1 of his submission on document 108 states:

“I agree entirely with the grounds of appeal”.I hold that the claimant’s grounds of appeal are well founded.”

If a wheelchair can be used, how far can you get in it?

What does either/or mean? Is it conjunctive or disjunctive?

CE/3302/2012

“The tribunal approached this case in accordance with the decision since given of Upper Tribunal Judge Wikeley in MC v Secretary of State for Work and Pensions [2012] UKUT 324 (AAC). It was right to decide on its findings that, as the claimant did not satisfy activity 1(a)(ii), he did not score any points for that activity.”

… And so what does UT Judge Wikeley say?

Other ESA activities and descriptors

39. This decision is solely concerned with the meaning of “either ... or” in the context of the standing and sitting activity. The same reasoning may not necessarily apply where “either ... or” is used in defining other activities and descriptors, even in the same Schedule to the ESA Regulations. This is because it all depends on the particular context.

What about Tom H, from rightsnet?

I think stopping is relevant to the (ii) descriptors of Activity 1, ie the cannot repeatedly mobilise 50/100/200 metres descriptors. Once factors such as a lack of fitness and laziness are ruled out, stopping is likely to be a sign of the requisite “significant discomfort or exhaustion”. But I don’t think it follows that you need to stop in order to satisfy the (ii) descriptors. Whereas people might normally be expected to stop where they are in severe discomfort, eg for DLA, I suspect more will be able to struggle on despite being in significant discomfort for ESA purposes.

If caselaw holds that severe discomfort in the context of DLA does not have to equate to excruciating agony but is likely to be more than mild/moderate discomfort, significant discomfort is likely to be somewhere between mild and moderate discomfort, though I appreciate the benefits concerned have entirely separate tests.

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The (ii) descriptors omit any reference to “level ground” in contrast to the (i) descriptors. That suggests that the test for repeatedly mobilising includes inclines and undulating conditions. Obviously the chances of becoming exhausted increase the more difficult the conditions become.

A reasonable timescale as appears in the (ii) descriptors has also yet to be defined by caselaw. I mentioned in a separate thread the case of my client who could walk about 0.5 - 1 mile stopping every 150m on his way to and from the shop in the mid morning but as a result of such exertion had to go to bed for at least 30 mins in the early afternoon. He arguably satisfied 1(a)(ii), ie not able to repeatedly mobilise 50m within a reasonable timescale.

It’s unclear whether “repeatedly.. within a reasonable timescale” is anything other than the reasonable regularity test established by caselaw and applied to IB. If not, then the test is likely to be: can a claimant mobilise the requisite distance when called upon to do so?

I don’t think that the reference to “reasonable timescale” qualifies “50 metres”. Otherwise that would potentially allow, as Victor suggests, stops within that timescale to be disregarded. Instead, I think the phrase “because of significant discomfort or exhaustion” qualifies all the words that precede it. So that, as stated above, having to stop should not be disregarded if it’s a sign of significant discomfort or exhaustion.

As far as the either/or point is concerned, Judge Wikeley was careful to restrict his interpretation to Activity 2 (see para 39 of CE/1516/2012) I think the context of Activity 1 is different. If you could only score points by satisfying both descriptors then it would make the (ii) descriptors otiose. It is implicit in the (ii) descriptors that they are capable of accommodating those who can walk more than the requisite distance on a single occasion without stopping, ie those who do not satisfy (i).

In fact CE/1516/2012 despite what is said at para 39 provides obiter support for treating Activity 1 differently to Activity 2. At para 20 Judge Wikeley suggests his decision on the interpretation of “either/or” may have been different if the Activity 2 descriptors had been drafted similar to the hypothetical descriptors at para 19 of his judgment.

I’d suggest that the structure of the Activity 1 descriptors has more in common with those in para 19 than with the actual Activity 2 descriptors.

The Future -Amendment of Schedule 2 to the ESA Regulations

5.—(1) In Part 1 of Schedule 2 to the ESA Regulations (Assessment of whether a Claimant has Limited Capability for Work) (b)—

(a) in Activity 1, for the wording in column 1 substitute—

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“1 Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally, or could reasonably be, worn or used.”

See also the WCA Handbook for Healthcare Professionals (July 2012)

AOB – Patrick Hill appeared to have the first case we have encountered of an overpayment with a civil penalty applied.

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