My Tribunal Submission (Let the ‘F’it hit the ‘Sh’an!) (UPDATE 23.04.14)
********************** Update 23.04.14 *********************************
Well that was a bit of a waste of time. The judge refused to hear the case before him.
Instead he concentrated on the Regulation 22, decision (basically the time out process for the ESA50).
The presenting officer tried to claim that I was lying, that the postman had allowed me to open a signed for letter, before signing for it.
It appears that neither the Judge or the Presenting officer are aware of postal insurance procedure, where you are supposed to check contents before signing.
Either way it was a real cop out by the HM Courts and Appeal Service. to use an even lesser issue to dispose of the case.
I will have to wait for the formal notification, but if he goes purely on the facts and evidence in the case.
Then he will declare that Regualation 22 was not complied with. Which effectively sets the clocks back a year. They will have to pay me a years income support paid as incapacity benefit and repeat all the process over again.
Just two words to sum up this hearing.
As some of you will be aware, I have been fighting for over a year now to push specific points of law before the Appeal tribunal in respect of various illegalities of the ESA and the ESA migration process, during this time the Department of Work and Pensions have been using some rather under handed tactics including that of intimidation to try and make this case go away.
Recently the case finally got a listing, only for the Judge in question to discharge her duty by declaring that she was “not suitably qualified to hear this case”.
After yet more problems, the case has been finally listed, 10:00am, 23rd April 2014, at Friar Street, Reading. (for those attending it’s at the end of the alleyway next to Nando’s, glass fronted building)
Now the unusual part, it is listed for 1 hour (not the usual 30 minutes) it is to be heard by a ‘Senior’ full time judge, (No doctor is to reside on the panel) and the Secretary of State has been ‘instructed’ (not invited) to send a representative.
My submission that resulted in this unusual case: (There are couple of lines missing, which are on the original form, I will add them later).
“… Decision makers. However this has been somewhat of an administrative black hole, as the Incapacity Benefit/Income support departments have been merged in to one and exist in name only. With no qualified decision makers, to Supersede all of the claims. Therefore making all amendments and or terminations, of existing awards of benefit under the Social Security Act 1998 to be in err of law.
Similarly, although the Welfare Reform Acts, do extend the Right of Supersession to the Appeals Tribunals. In respect of claimants being migrated to Employment Support Allowance, the Appeal Tribunal can apply a request for Supersession finding, however this again is made to be in err of law by the means of maladministration within the Department of Work and Pensions as in the absence of suitably qualified decision makers means that the findings cannot be legally implemented.
Outline Chronology of this Case.
November 2011; ESA50 issued to claimant, after considerable amount of refusal the DWP agreed to make reasonable adjustments under the Equality Act, ‘telephone interview and completion of ESA50’, to be forwarded for claimants verification and signature.
February 2012: First appointment sent by ATOS Healthcare, claimant questioned these both with ATOS Healthcare and the DWP, as the DWP had not actually sent the completed ESA50 for the claimant to sign before forwarding the claimants information. The DWP claimed that ATOS Healthcare where acting as a Data Processer in the Capacity of Conducting the WCA and was only offering their ‘opinion’.
First appointment was deferred by ATOS Healthcare, to allow for an investigation.
Claimant verified with the Information Commissioners Office, that in fact ATOS Healthcare where defined as a ‘Data Controller’ in this capacity and that the DWP’s exemption for Data Processors did not apply. ICO did recommend that the claimant raise a formal complaint with the ICO, however the claimant chose to try and work with the DWP to resolve these issues.
Second Appointment was deferred, ATOS Healthcare (Medical Services, Customer relations Senior Manager). Was refusing to investigate the DPA issue, stated that this was an issue for the DWP. Although at this point, ATOS Healthcare where illegally holding the claimants information at their Reading Assessment Centre.
Third Appointment was deferred: Pending investigation, at this point the mandatory notice for refusal to attend was issued.
During this time the claimant had been in constant contact with the Incapacity Benefit Reassessment team (IBR) at the DWP. However they still defined that the claimant had given no reason for not attending the WCA and illegally terminated the claimants Incapacity paid as income support.
1. The ESA50, Paperwork/WCA process is for the assessment of Employment Support Allowance under Section 19 (3) of the Social Security Act 1998 as amended by the Welfare Reform Act 2012. Thus only the benefit being assessed is subject to under Section 19 (3) of the Social Security Act 1998 if declaration 5, Page 18 of the ESA50 has not been signed. Of which the earlier award of benefit was not being assessed and no authority for retrospective amendments had been given (No Signature obtained)
2. If Declaration 5, Page 18 ESA50 had been signed, then the issue of the ‘The Right of Supersession’ (Social Security Act 1998), would then be raised. As highlighted earlier in this response, said legislation was not repealed under the Welfare reform Acts. Senior executive Officers within the relevant teams. Have gone on record to state, that the Incapacity Benefit reassessment team decision makers, on behalf of the Secretary of State, have ‘not’ been trained, in, or qualified to supersede an earlier award of benefit (Made under the Social Security Act 1998), in fact they did not even know that it existed. They had been transferring such decisions to incapacity benefit/income support decision makers. However this is an administrative black hole, as the Incapacity Benefit/Income support departments have been merged in to one and exist in name only. With no qualified decision makers to Supersede all of the claims. Therefore making all amendments and or terminations, of existing awards of benefit under the Social Security Act 1998 to carried out by the IBR be in err of law and as such their termination of my Incapacity Benefit paid as income support was in err of law.
After considerable amount of hostility from the IBR Team, they allegedly carried out a Reconsideration, which upheld the previous decision.
The claimant then challenged this to the Senior Manager of the IBR complicated decisions team, to carry out a ‘Managers performance review’ of the process of this and the earlier decisions. The managers finding was that the “claimants interpretation of the law was entirely correct”. Whereupon, the matter was placed, before another Decision Maker. Subsequently the earlier decisions where overturned. Thus reinstating, the Claimants Incapacity benefit Paid as income support.
This however created a legal quandary for the IBR team, as the claimant had already stated that he was not comfortable with Declarations 4,5 and 6 on page 18 of the ESA50. Namely they would require him under duress to give up his right of Privacy and submit to retrospective law in Contravention of Article 7 and Article 8 European Convention of Human Rights and Article 12 of the United Nation Universal declaration of Human Rights.
Specifically Declaration 5 (ESA50) is in contravention of Article 7 (1) European Convention of Human Rights.
“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
Given the far reaching nature of declaration 5, which includes an interpretation in which a claimant can be held retrospectively in account for alleged (criminal offence of) fraud based upon the WCA and undisclosed alleged evidence. No person of sound mind would wish to enter into such a declaration should they have understood the consequences.
Declaration 5 ESA50 states:
“I also Understand that the Department may use the information which it has now or may get in the future to decide whether I am entitled to
-the benefit I am claiming
-any other benefit I have claimed
-any other benefit I may claim in future”
There are already documented incidents in which earlier WCA assessments have been used covertly (unbeknown to the claimant) to overrule Disability Living Allowance assessment decisions. The claimant has only become aware of this as part of the DWP submission for a Tribunal. Of which the Tribunals have quite rightly overruled the usage in this manner. Although without it being presented as a point of law before the upper tribunal. The DWP continue use the WCA against other non-associated benefits.
Given that many benefits are pass ported together. This has much farther reaching consequence. As an example;
Let’s say Claimant (A) has in the last 5 years continuously claimed;
– Incapacity benefit paid as income support
– Local Housing Allowance (Housing Benefit), on a private rental property.
– Council tax benefit.
The opinion of the WCA declared zero point score, the Decision Maker used this as the evidence to terminate the migration to Employment Support Allowance. Using Declaration 5 the DWP fraud investigations team then retrospectively declared that based upon this zero score that Claimant (A) never qualified for Incapacity Benefit paid as income support, therefore this had been claimed fraudulently. Resulting in a combined pass ported benefits reclamation of £100K+, plus highly probable conviction. Even though claimant (A) has never actually committed an offence and the WCA findings did not actually reflect the claimant’s fitness for work in the previous 5 years.
Declaration 6 (ESA 50) Article 8 European Conventions of Human Rights.
Article 8: Right to privacy
(1) Everyone has the right for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Declaration 6 ESA50;
“I agree to my doctor or any doctor treating me, being informed about the Secretary of State’s determination on
– limited capability for work
– limited capability for work-related activity, or
Given that Lord Freud has been rather adamant that the WCA ‘is not a medical diagnosis’ why would a claimant agree to non-medical diagnosis result being added their Medical Record?
Despite numerous requests the DWP, refuse to explain why this is a vital requirement of declaration.
On an anecdotal basis there have been numerous reports from General Practitioners, concerning formal notifications from the DWP, in which the findings of the WCA process are notified, where a patient has failed in their claim. The Doctor is ordered “not to issue anymore fit notes for this person”. Obviously GP’s are quite rightly furious about this as in their opinion. Unqualified non medical persons should not be telling them what is the correct response of their medical diagnosis of their patient.
As the result of this and other Issues, GP’s vote unanimously to declare the WCA, ‘not fit for purpose’.
The SEO the contacted DWP Halifax to obtain legal advice as to how they should progress with this matter. As the guidelines that the IBR had been given is that they must send this to ATOS Healthcare, but in doing so with Declarations 4,5 & 6 being redacted and signature only being given “Without implied DPA Authority”. That they would be committing an offence under the Data Protection Act.
This advice was not forthcoming, In April 2012 (believed to be the automated system) sent the claimant information ‘without an ESA50 request’ or completion to ATOS Healthcare.
June 2012, the claimant received the Notification to attend a WCA. Obviously rather puzzled by this the claimant contacted the IBR team for an explanation.
Whereupon he was told “We can send your information without an ESA50”. Without provocation IBR team member became very hostile and terminated the call.
The Claimant contacted ATOS Healthcare, they deferred the first appointment so that an investigation could be carried out.
Again the Claimant contacted the IBR team, whereupon the same member of staff stated that the claimant was correct and all the claimants information would be ‘pulled back for ATOS’,’as they should not have it on record’, ‘All that information will be forwarded to you (The claimant), in compliance with the Data Protection Act”.
Second appointment approached, claimant contacted ATOS Healthcare, again they agreed to defer the appointment to allow the compliance to take place.
Just before the third appointment the claimant contacted the IBR Team, whereupon the same member of staff tried to deny the earlier conversation. The claimant reminded the member of staff that all calls that are made to and from their phone where recorded, whereupon the member of staff proceeded to misrepresent DWP regulations, Data Protection and Communication Act. The claimant advised the member of staff that he holds an Advanced Diploma in IT, as Well as a University CertIT in information Technology and Computing, both of which have a DPA and communications Act component, and that he could on a professional basis state that the member of staffs interpretation was wrong. However out of courtesy (not legal requirement) the claimant did have it noted on his file concerning the recording of calls, so that staff would be aware. The member of staff started shouting incoherently at the claimant then terminated the call.
Due to the Circumstance ATOS Healthcare deferred the third appointment, flagging up the notification for nonattendance.
Again despite the on-going situation, a decision maker declared that the claimant had not given sufficient reason for not attending the WCA. Thus illegally terminating the claimants Incapacity paid as income support for a second time.
Obviously the Claimant challenged this again, however the front end IBR staff kept intercepting the request for the matter to be addressed by an SEO. They quoted legislation that does not even exist, as the reasons for their response.
Eventually one of the front end IBR staff stated to the claimant (whilst knowing he was on recording) that they had “carried out a reconsideration and had upheld the previous decision to terminate the benefit”. When the claimant asked under what regulation, the member of staff started to shout incoherently at the claimant and then terminated the call.
After a few days of similar responses the claimant spoke to the SEO of the IBR Communications section, who in turn emailed an SEO directly in the IBR Team.
An SEO from the IBR Team eventually called the claimant back, stated that they had carried out a Reconsideration and that the claimants award for Incapacity Benefit Paid as income support would be reinstated. When the claimant questioned about the earlier reconsideration, he was told that “No such reconsideration was carried out”. The claimant declared that he wished to make a formal complaint about the actions of aforementioned staff member, the SEO refused to take that complaint. She then stated “We are giving you one last chance to complete this process”. The claimant pointed out that until the law was changed, that it would be just a repeat of the same never ending cycle, however he would comply with what he is required to supply by law (With the redactions of Declarations 4,5,6) and a signature without implied Data Protection Act authority. The claimant then went on the ask for “Reasonable adjustments to be made under the Equality Act” so that he could complete the ESA50. The SEO flatly refused to make reasonable adjustments and terminated the call.
No further communications took place between October 2012 until the End of January 2013. Whereupon the claimant received a rather unusual letter dated the 30th January. This letter stated that the DWP had issued a signed for letter on the 19th December 2012 and that the Post office tracking system shows that he had ‘not’ received that letter. Also contained in this letter of the 30th January 2013, was an ESA50. Which would have been a good thing however the IBR had written on the front “Original Issued on the 19.12.12”, knowing that this would be a false declaration (of which the claimant could face criminal prosecution) the claimant challenged this.
Only to be met by the same hostility and interceptions of requests for this to be addressed by an SEO. During those telephone conversations the IBR staff insisted that the claimant had to return that ESA50 with that falsified declaration intact.
When the claimant stated “I will not make a false declaration”, they just repeated “Well that’s your loss, it has to be returned as is”. Trying to resolve the situation the claimant being aware that a different ESA50 would be used for the process, once again requested that Reasonable Adjustments be made under the Equality Act so that he may be able to complete the ESA50, the response was “We don’t have to do that”, “ That is your problem”. Then they terminated the call.
In February 2013 the claimant received the standard termination of benefit notification on the basis that he had not completed the ESA50.
However he also received the aforementioned signed for letter. The Postal worker had a gut feeling about the envelope and allowed the claimant to open it (which is within his discretion) before the claimant signed for it. Much to the surprise of the claimant and the Postal worker, the Signed for Envelope was empty. Thus the claimant quite rightly refused to sign for it.
What this actually means is that the IBR Team had sent an ‘empty‘ envelope via signed for post, in the view what became a false declaration of earlier issue on the 19th December 2012, therefore the claimant had been correct in his suspicion that the Declaration that had been written on the front of the ESA50 from the 30th January 2013. Was an attempt to time his claim out by illegal means. If he had returned said ESA50 he would have been endorsing this as well as committing a criminal offence.
When the claimant challenged the Decision Dated the 8th February 2013 , which listed a rather unusual mid payment termination date of the 28th February, he was told that there was no such decision on record and that the Actual Decision was the 13th February 2013, with termination on the 5th March 2013. When the claimant stated that he had not been notified of this decision in writing the response was “Well I am telling you now, aren’t I!” made in a rather sarcastic tone. As the claimant went on to question the sending of the empty envelope via signed for delivery, the response was “I am bored with telling you this, return your ESA50 with the declaration intact, or take a long walk off a short pier, as far as I am concerned all you LTB’s are the same”. The member staff then terminated the call with no warning.
LTB’s is believed to be the derogatory terminology previously used by work programme providers for claimants, meaning “Lying thieving Bastards”.
On the 15th of February 2013 the claimant received a rather alarming threatening letter from Johanna Richardson, (Business) Manager, Job Centre Plus, Reading, Berkshire.
This letter accused the claimant of “Being abusive over the telephone and making inappropriate personal and political comments to staff at Hyde benefit centre”
Obviously given the behaviour of IBR team staff at Hyde, the claimant was rather shocked and alarmed by such serious allegations being levied towards his person, and promptly reported this under the Malicious Communication Act 1988, Criminal Justice and Policing Act 2001, to Thames Valley Police Reading.
Once this incident was noted, the claimant then contacted Johanna Richardson in view of obtaining a transcript and or copy of the alleged recording as required under the Criminal Justice Act. As the claimant already had recordings of those calls which could be used to see if they had been edited in any way or form.
Johanna Richardson stated to the claimant, that she had been advised that they could only release a copy of the evidence if the claimant made a subject access request. The claimant stated that criminal law exceeded the civil law in this respect. However the manager was adamant that it could only be released via a SAR. The claimant had no argument with the Manager and stated that maybe she should reserve that judgement and seek further advice.
The following day the Manager contacted the claimant and apologised, as she was still being instructed it should be via a SAR. What ensued was quite a lengthy and polite call between the claimant and the Manager. In which the manager was rather shocked at the IBR teams refusal to make adequate adjustments under the equality Act. Her exact response was. “They are not allowed to do that” The rest of the conversation was off the record so can’t be disclosed.
Shortly afterwards the claimant was contacted by a Decision Maker from the IBR Team, Who state “You have requested to speak to me”. The claimant stated that he had been requested for an SEO. The DM replied “Oh”. “Is there any issues I can address”.
The claimant replied “there are many issues”, “However the only priority one is about reasonable adjustments under the Equality act so that I may be able to complete the ESA50”. The DM said “leave it with her”.
An hour or so later Johanna Richardson called the claimant and stated “I have been asked transcribe your information on to an ESA50 if that is ok with you”. The claimant confirmed he was happy with this and a Telephone appointment was made for the following day.
Meanwhile being aware that the claimant had been supplied £5.5K of specialist equipment the DWP under the Disabled Student Allowance (Which includes voice control/type software and hardware). She had been able to track down an Editable Electronic copy of the ESA50 in Portable Document Format (PDF) on the DWP servers and emailed the URI to the claimant.
When she contacted the claimant on the phone to confirm this was appropriate, the claimant advised that he had been aware of the availability of this editable Electronic Copy for some time, however the IBR Team refused to accept that it existed and had refused to accept the ESA50 in any other format than that which they sent out.
She stated “that is a ridiculous response from them”, “ they have to make reasonable adjustments”. “I will be contacting them”.
Over the next few days the claimant completed the ESA50, redacted declaration 4,5 and 6, printed it out and signed it (with no implied authority under the data protection Act).
The IBR teams response to this when the claimants payment did not arrive on the 18th March 2013. “You have returned your ESA50”. “However we do not know what to do about your redactions so we have contacted Halifax of legal advice”. When the claimant pointed out that they had not superseded his existed award of benefit, yet they had terminated it without right of reconsideration or appeal. “The benefit had been terminated as notified on the 13th February”, the claimant pointed out again that he had not been sent that termination notice, the reply was “Yes you have, oh no wait, that is the wrong one, the 8th February one has the wrong dates”, “I will have to get that sent to you”. (This was now the 18th March and the notice of Termination which ran its term on the 4th March, still not been sent to the claimant).
However the claimant reiterated “Such terminations are in err of law as the existing benefit cannot be superseded by the IBR decision makers”. The response “That is correct”.
The claimant asked “by what regulation has the benefit been terminated then?”
IBR: “The Notification of the 13th February 2013 that you failed to return your ESA50”
Claimant: “ So the involvement of the Site Manager at Reading JCP, the previous refusals from your department to make reasonable adjustments under the equality act, the sending of an empty signed for letter to make a false declaration of issue, and the falsified declaration placed on the ESA50 of the 30th January, do not come in to it?”
IBR: “No, as far we are concerned, since your ESA50 was redacted, you did not return it to us.”.
The claimant reiterated that he had supplied all that he is required by law to supply, IE. a completed ESA50 questionnaire with the first 3 declarations not redacted. (Those relate to declarations that the evidence given is truthful, and the requirement to notify the department of any changes in condition, As required under the Social Security Administrations Act 1992 as well as the Social Security Act 1998 and the subsequent Welfare Reform Acts as amended).
IBR: “ We have sent it for legal advice”. “What we have done is correct in law”.
Claimant: “Which law or even Guideline would that be?”
IBR: “ I don’t know but I could research it” (Said in a sarcastic tone) He hangs up the phone with no warning.
The claimant managed to get hold of the SEO a few days later, however her response was somewhat the same, with the exception that she had the decision of the 13th February issued as a (Duplicate) and she would try and expedite the response from the legal Advisors.
Given that the Legal Advisors had not responded since request in February 2012, the claimant was not expecting any response soon.
Saturday 23rd March, the claimant receives the (Duplicate) of the decision of the 13th February 2013, relating to the Termination of his benefit for failing to return the ESA50, Termination from 5th March 2013.
He also receives a ‘revision’ notice (which is odd since they have not been valid since 1998).
This is worded differently
A reconsideration as required under the Social Security Act 1998.
“You have asked us to reconsider an earlier decision
A revision notice, (as contained on the notification)no longer valid since the Social Security Act 1998,
“You asked us to look again at a decision”.
However setting aside the legal issue of a revision being carried out instead of a reconsideration, the entire sentence reads.
“You asked us to look again at a decision issued to you on 08-Feb-13”
The claimant set aside the revision/reconsideration issue, and tried to point out the obvious mistake made by the IBR decision maker. Namely that they had revised/reconsidered the wrong notification. As this related to the Earlier 8th February 2013 notification that was for the wrong dates.
The IBR front end Team despite three, one hour priority notifications for an SEO, refused to forward the matter to an SEO and insisted that the fact that it related to an earlier technically non existent notice. “Did not matter”. “You have been told what to do”. “Appeal it”.
The claimant pointed out that even the Decision Makers Guide states that they must correct any decision which they know to be in err of law.
IBR “No we don’t”.
Claimant: “ So you are refusing to correct or refer this to a decision maker to correct the err in law”?
IBR: “Correct!”, “ You have been told what to do, we have devoted a lot of time to this case, just take it to a tribunal”.
Claimant: “ Just to remind you this call is being recorded”.
IBR “ Why should I care, they won’t touch us”
Claimant: “So you are confirming that the IBR team or it decision makers will not correct this err in law”.
IBR: “I’m not confirming or denying that”.
Claimant: ”So you are retracting your earlier response”.
IBR “No I am not”.
IBR “Guess this is going around in circles”, “Isn’t it” (Laughing) Said in a sarcastic manner.
IBR: Terminated the call with no warning.
So this is how it stands, the certain individual within the IBR Team have nothing but contempt for claimants that are being migrated, they have even less respect for being seen to comply with Natural Justice and that of the Appeal Tribunal.
However those are not the issues here today:
The claimant is ‘not’ asking the Tribunal to deliberate and return a finding in respect of himself being migrated to Employment Support Allowance. As he is aware that such an action, will create the similar legal quandary as that which the Department of Work and Pensions now find themselves,
Instead, he respectfully asks, that the Tribunal dispose of this case with recommendation for a hearing before the upper tribunal. On what this tribunal would define as the lesser issues of points of law in respect of;
1. The Data Protection Act 1998, and the associated issues of the Department of Work and Pensions allegedly wrongfully declaring ATOS Healthcare as a Data Processor, when prior rulings by the Information Commissioner would clearly define them as a Data Controller in the Capacity of conducting the WCA.
2. The Right of Supersession (Social Security Act 1998). In which the state has not been showing sufficient or obtaining for the purpose of, evidence to Supersede an existing award of benefit. No supersession has been applied, which is in contravention of Social Security Act 1998, on existing awards, by the department of work and pension. (Those subject to the migration process).
3. That Declarations 4, 5, 6 of the ESA50 questionnaire, are allegedly in contravention of Article 7(1) ‘forced submittal to retrospective laws’ and Article 8 ‘forced termination of right of privacy’ of the European Convention of Human Rights. As well as being enforced with no right of Refusal in sharing of Private Personal information with other Data Controllers in contravention of The Data Protection Act 1998 and that ATOS Healthcare has not been correctly declaring themselves as a Data Controller in respect of the WCA in direct contravention of The Data Protection Act 1998.
4. That the existing award of Benefit Made under the Social Security Act 1998 (Incapacity Benefit Paid as Income Support), be reinstated as per regulation until the outcome of said Upper Tribunal.”
ESA50 questionnaire : www.gov.uk
Some of the Previous History of this case detailing some of the underhanded tactics employed by the DWP:
— 13thHouR (@rforceorg) April 21, 2014