I'm sure someone has looked into this problem before but has anyone ever found a way around it. Does it come under the definition of discrimination (a policy or decision which has no rational foundation) and can therefore be challenged under EU legislation, or the ECHR.

It seems to me that it does discriminate as clients who appeal against refusal to review and continue DLA payments do not face a 20% reduction in their entitlement to ICB or Income Support.

If there is a reasoned answer by the DWP or Government can someone please fax me relevant documentation.

Thanks very much.

Dave Daglish,
Advice Worker,
Toryglen Rights Project,
Glasgow

Fax No 0141-613-3036

Not quite sure what you're asking. If you're saying that the policy to pay reduced IS to those appealing failed PCA decisions then I don't think you have much mileage as it is in effect a concession in favour of the claimant. A decision has been made that they are no longer incapable of work so they are no longer ent to IS on grounds of IFW. Without this, claimants would have no choice but to sign on until their appeals have been heard (which they can in fact do, thus avoiding reduced payments. However, obviously this is not practical for many of our clients).

Not sure of the relevance to DLA either. If you'd like to clarify what you mean I'm sure I or somebody else will happily offer further opinions.

Hi,

Well, perhaps I'd better go back a bit. In 1999 when I was myself in receipt of ICB I was taken off during a review. Needless to say I won my appeal and my ICB was reinstated. However during the 11 months I was claiming income support there was no reduction in my entitlement and this didn't just apply to me because I was a ex welfare rights officer of some fifteen years standing, it happend because at that time the DSS (as it was then) didn't reduce IS entitlement just because you appealed a (usually bad and injust) review decision.

How you consider the present system to be a 'concession' in favour of the claimant somewhay puzzles me. It's a blatant attempt to scare claimants into not appealing ICB review decisions. No more, no less. A cynical move by an uncaring and out of touch government. You have to remember that the background to this decision is the openly stated objective of the present government (and probably any other as well) to reduce the disability bill by 75% as soon as is practicable.

My reference to DLA was simply a clumsy attempt to say why only ICB?
If clients request an appeal because their review of DLA has gone against them the DWP don't reduce their entitlement to their weekly benefit so why do they do it with ICB claimants? What is the rational purpose of this reduction especially when one considers the point that IS allowances are probably, in real terms, below official poverty levels to begin with.

Hope this clarifies my position.

Dave Daglish

But they do reduce your weekly benefits if a DLA review decision goes against you and it is material. If you were, say, a lone parent not incapable of work but getting low rate care DLA and claiming IS, then if you lost DLA you would also lose the disability premium.

I agree that the 20% reduction is a concession and they were going to get rid of it completely and force claimants appealing PCA determinations to sign on in the PCA proposals changed slightly earlier in the year. Our local jobcentre is okay with these people but I bet loads aren't and I can see it being a real problem esepecially with clients with mental health problems.

You may not have had the reduction if you had transitional protection if claiming before 1995 (I think), but no PCA appeal can be a guaranteed success so not reclaiming after 6 months would have made even longer your climbback to a disability premium if your appeal had failed.

I don't think that anyone likes the 20% business but the thought of it going away completely makes it appear quite attractive.

Have you tried antering a claim for income support on the basis that the claimant is a "disabled worker" under para 8 Sch 1B IS regs?

You can claim IS if the amount of work, or payment for that work is restricted to 75% of what would normally be done but for your disability (or something like that). Clearly, no work is less than 75%. They won't get the DP, but they shouldn't get the 20% reduction either.

Sadly, when I have tried this, it has been refused and the IB appeal has been heard before the IS appeal, but there might be a reasonable DM somewhere in the country.

Alternatively, there was a discussion about this issue a couple of years ago in relation to stopping I.S. completely in the case of LTAHAW decisions and the potential breach of Art 6 - it might be in the archive somewhere.

Hi,

Thanks for all the comments.

This issue was resparked for me when I read about another totally unjustifiable law the other day to do with CSA payments under the old and new rules.

I just feel so inadequate when I know most of my clients are faced with this discrimination just because they have dared to question the decision of an EMP and DM. So much for 'justice for all'. 20% of just over £50 is a lot of money.

Anyway thanks again. Just have to keep battling away.

Dave Daglish
Toryglen Rights Project.

I usually advise clients to claim JSA while the appeal is pending. They loose the disability premium but they dont suffer the 20% deduction.

I know they get all the hassle of the job seekers agreement, but its beter then loosing 20%.

Claiming JSA should not affect the IB appeal

I'm very supportive of Dave's point, I agree that the reduction in IS pending appeal is a blatant injustice.

However I would go further. It seems to me an inherent injustice to take away any money at all from someone while their right to appeal is yet to be exhausted. What we should perhaps advise is not only to appeal about the decision on entitlement to incapacity benefit/credits, but also to submit an appeal against the decision to implement withdrawal of payment before the matter has been decided by a tribunal. And in tandem to seek a judicial review of the decision to stop payment before the appeal is decided.

How can it be reasonable or fair for a person to be denied benefit on the basis of a decision that is subject to a live appeal process that is yet to be completed? Consider also the fact that the progress of the apeal depends on the administration of a party to the appeal, i.e. the DWP.

Does anyone know of any cases addressing this issue?

I very much doubt that there will ever be any cases that address the issue. The normal position is that, when a decision is made, that is the decision that is operative until it is overturned in some process or another. It requires specific legislation to over turn this presumption. That is why I described the possibility of the IS with 20% reduction as a concession. Without that specific provision anyone who goes through a PCA and fails would lose benefit entirely and would have to claim JSA or do without.

I can't really understand the analogy with DLA either. Satisfying DLA conditions has nothing to do with actual entitlement to IS whereas the question of incapacity for work is a qualifying condition for IS. Its not the loss of IB that brings you into this situation, its the decision that you are no longer IFW.

In fact you could argue that you do lose out on IS if your DLA is stopped as you may no longer be entitled to the severe/disability premium. That is a reduction of IS and the premium is not restored until any appeal is successful.

The injustice lies in the entirely hapahazard way that PCAs are carried out as evidenced by extremely high appeal success rates.

From a policy point of view no government of any political persuasion would allow a situation where you do not lose any benefit until all appeals have been exhausted. That would allow the situation where someone could have fully recovered from their illness yet would continue with the appeals process in order to keep the money coming in. That sort of thing would probably be called 'abusing' the appeals process by certain politicians but, if that was the situation we faced we would all be advising clients to do that. I certainly would. That sort of possibility puts the heebie jeebies into any politician in charge of making decisions about expenditure.

THE CSA issue with old and new assessments however I think is a clear cut issue of discrimination and I'm sure I read somewhere that someone has launced a challenge on those grounds. I'm faily sure it was an 'absent' parent who has taken this step on the basis that the fact that he is paying more under the old system is discriminatory. I wonder if a parent with care will think of launching a discrimination case on the basis that her new assessment is worth a lot less than those under the old regime?

re the csa issue .... did you read it here ..

Delay in rollout of new Child Support system: European Court of Human Rights case

I think that Ian Miller has the really bigger problem here in LTAHAW decisions made totally stopping someone's benefits. Now that really is an injustice. Loss of DP and 20% cut by a hurried medical report is bad but a complete loss of benefit sometimes without even having been given a chance to argue your case when you're a vulnerable single parent is absolutely disgusting. I've had single mothers forced to take in ex-partners who've made statements saying they'd like to be together and no statement taken from the mother. That's social engineering by pernicious decision making.

Improving PCAs is obviously important but surely the most important thing needed in this country is an across the board increase in training for ALL decision makers and a move back to the notion of a disinterested first tier adjudication system without some either subconscious or conscious feeling that the DWP must save money more than make correct decisions.